What is Documentary Evidence?

According to the Blacks Law Dictionary, any evidence  supplied  by  writing,  which  must  be  authenticated  before  the  evidence  is admissible is Documentary  evidence. By this, writing includes books, maps, plans, drawings, photographs, matters expressed or described upon any substance by letters, papers or marks and is intended to be used for record purposes. S258 (1) of the Evidence Act interprets the terms: ‘copy of a document’, ‘computer’ and ‘document’ and S84 deals with the admissibility of statements in documents produced by computers. A document is a statement made in a document which is offered to the Court in proof of any fact in issue

• S 85 - 92: Definition, classification and admissibility of documentary evidence.
• S 83 – 84: Admissibility of documentary evidence. 
• S 93 - 98: Proof of Execution of Documents
• S 102 – 106: Differences between Public and Private Documents 
• S 128 - 130: Circumstances of exclusion of oral documentary evidence. 
• S 107 – 120: The contents and validity of Affidavit.
  

Any document tendered as a proof of its content is hearsay and inadmissible unless it falls within one of the exceptions, e.g. dying declaration, or a public document. On the other hand, it is not hearsay if the same document were tendered to prove its existence or the fact that it was made. Some documents like the Acts of the National or State Assembly are judicially noticed and are admissible without any form of authentication. There are other documents which may necessarily be authenticated or classified, stamped, sealed or signed by designated public officials as the case may be.  The validity of a document determines its admissibility or the secondary evidence of the document.

Ancient documents  

If a document  is proved or purported to be 20 years old and is produced from the proper custody and otherwise free from suspicions, the court will presume the document’s validity but not its veracity. The Court presumes that:
-  The signature on the document is genuine
-  The handwriting is that of the person who is supposed to have written it.
-  The document was duly executed.

Here, proper custody implies the deposit of the document in a place, and under the care of persons, with whom it might reasonably be expected to be found. Generally, if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or, the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting (S93).  

Proof of Signature and handwriting and Electronic Signature

Evidence that a document exists having the same name, address, business or occupation as the maker of a document purports to have, is admissible to show that such document was written or signed by that person. Evidence that a document exists to which the document, the making of what is in issue purports to be a reply, together with evidence of the making and delivery to a person of such earlier document, is admissible to show the identity of the maker of the disputed document with the person to whom the earlier document was delivered (Evidence Act 2011, S 93 and 94)  

Handwriting

Evidence of handwriting may be required for a document (not an ancient document) which a person is alleged to have signed or written.  The evidence of hand writing may be given by:

• comparing the disputed signature or handwriting with a sample which is either admitted or proved to have been written by the person named (i.e. the writer or signatory).
• calling the alleged writer or signatory as a witness and inviting him to write any words or figures so that the Court can compare with the disputed document. 
• calling  the  alleged  writer  and  signatory  or  person  named  as  a  witness  to identify his or her own signature or writing. 
• calling any person who saw the writer or signatory write (where he or she is not available) to give a direct evidence of that fact. 
• calling a person who is familiar with the writing or who regularly receive(d)s documents signed or written by the signatory or writer of the disputed document to be called to make a comparison.
• the opinion of hand writing expert witness.  
  

The Evidence Act 2011 introduced electronic signature. In S93(2) (1) (3), it states that where evidence requires a signature or for certain reasons, a document is not signed, an electronic signature satisfies. It also states that an electronic signature may be proved in any manner, including by showing that a procedure existed by which it is necessary for a person, in order to proceed further with a transaction to have executed a symbol or security procedure for the purpose of verifying that an electronic record is that of the person.  

ATTESTATION

Some documents require attestation such as will or other testamentary disposition or other document required by law. To prove due attestation, you need to call the attesting witnesses if they are alive or resort to proof of handwriting if the attesting witnesses are dead. An ancient document is presumed to be valid.  Accordingly the Court presumes that the signature is genuine; that the handwriting is that of the writer or signature and that the document is duly executed.  In other words, these facts or matters need no proof in Court; they are presumed to exist. Recitals, statements and descriptions of facts, matters and parties contained in deeds, instruments, statutes, and statutory declarations of at least 20 years old are presumed to be correct.
Where the holder of a bill of exchange has a lien on it, by contract or in law, he is deemed to be holder for value to the extent of his lien.
Where value has at any time been given for a bill of exchange, the holder is prima facie deemed or presumed to be holder for value.
Alterations to deeds are presumed to have been made before or at the time of execution. The effect of material alterations made after execution of a deed without concurrence of the party to be charged is to render the whole deed void.
Alterations to Wills are presumed to have been made after the execution. Alterations to a Will made after executions are of no effect unless they amount to partial revocations.  
A document which is required by law to be stamped is presumed to have been duly stamped if it is lost, or not provided upon notice.  
These presumptions are examples only.  They are not exhaustible.  

Read: Biography of Chief Wole Olanipekun, OFR, SAN
 

Proof of the Contents of documents: S 85 – 89 Evidence Act, 2011.

The contents of a document may be proved by primary or secondary evidence, depending on the requirement of the law and the nature of the document (public or private). The contents of any document must be proved by primary evidence subject to certain exceptions. Primary evidence is the production of the original document for the inspection of the Court. Where a document is executed in several parts, each part is primary evidence. Similarly, if in counterparts, each counterpart, or a copy of identical documents produced in a uniform process by means of printing, lithography, photograph, like the copy of any Newspaper of a particular date is original. Each of these documents is a primary evidence of the contents of a pertinent edition.

The original document sought to be produced must be identified on oath being what it purports to be, unless it has already been admitted or it is a public document admissible on production.
If the original document is in the hands of an opponent or a stranger,  the following notices to produce must first be served:
- Notice to produce.  –Here  production  is  optional,  commonly  used  in  Criminal proceedings
- Subpoena duces tecum   -Here, production is compulsory  
In the case of banker’s books, the judge’s prior order is necessary
An Admission (oral, written or by conduct) of the contents of a document by a party is a primary evidence against him or her, who admits. Similarly a copy of document acknowledged as correct by an opposite party is regarded as an original document.  

Copies of an Original Document  

A copy of an original document made under a public authority may be admissible as primary evidence.  For example, Probate of a Will is a primary evidence of the words of the Will.  A  document sealed and certified  by the  Director  of National Archives  is treated as primary evidence (Public Archives  Act. Section 7 and Evidence Act section 88); so also is a certified copy of entry in the Register of Marriage (Marriage Act).  

Secondary Evidence: S 87, Evidence Act, 2011.
Secondary evidence of the contents of a document is any admissible evidence other than the primary evidence.  The general rule is that the Secondary evidence of the contents of a  document   can  never  be  admitted  unless  the  original  document  itself  would  be admissible in evidence.  It is of utmost importance that first, you lay a foundation for admissibility of the original document, giving account of the original document e.g. that it is a public or judicial document.   Next is to lay the foundation for the admissibility of the secondary evidence of those documents.  

Forms of Secondary Evidence
Secondary evidence may take any form; but where statute prescribes a particular type of secondary evidence, no substitute may be permissible admissible. These forms of Secondary evidence are: 

• Office copies of judicial documents bearing official seal, and made by an officer of the Court having custody of the original document.
• Examined  Copies  of documents  produced  by a writer  who,  has compared  them with the  originals  or by oral  evidence  by a witness  who  has read  the original document. 
• Photostat or certified copy of the original copy
  

Oral testimony of private documents may be given by the testimony of the conduct of a person, acting in pursuance of the assumed terms of a document. A public  or judicial  document  and quasi-public  document  may be proved  by oral  or secondary  evidence,  depending  on convenience. They may be proved by:
- an examined copy
- Sealed and certified copy of records (public record or letters patent)
- Certificates or certified copies of public documents, proceedings of corporations or entries in Register.
- As statute may prescribe
- A copy of extracts of books, documents of public nature. 

Private Documents

Private documents must be proved by primary evidence, except in those special circumstances in which the law allows secondary evidence of their contents. 

Cases in Which Secondary Evidence of Private documents is admissible - S89 Evidence Act, 2011.
A secondary evidence of the document may be admitted in the following cases:
- Where the original document is lost or destroyed
- undue delay or expense would be involved in providing the original
- Where the original is in the hands of a stranger
- Where the original is in the hand of  an opponent
- Where it is inconvenient or physically impossible to provide the original. 

Bankers Book
An  entry  in the  ordinary  books  of the  Bank  may  be  proved  by secondary  evidence provided that:
⦁    The book in which the entry is made is at the time one of the ordinary books of the Bank, irrespective of whether it is used daily or occasionally.
⦁    The entry is made in the usual and ordinary course of businesses.
⦁    The book is in the custody and control of the Bank, which proof may be given orally or by affidavit by a partner or officer of the bank.
⦁    The copy has been examined with the original entry and found to be correct, (not necessarily verbatim or precise language) but in substance.   A Ledger card is not admissible (YESUFU V ACB (1976)

There are several ways of proving a secondary evidence of previous conviction.  They include:
⦁    By a certified copy of the record
⦁    By a certificate signed by a clerk or deputy clerk of the Court of trial
⦁    By a copy of the summary conviction signed by a Justice of the Peace
⦁    By a certified extract from the Court Register
⦁    By a certificate signed by or on behalf of the Inspector General of Police giving particulars  of the conviction,  and certifying that the finger print exhibited to the certificate are those of the person convicted and
⦁    A certificate signed by the person in authority certifying to the same effect.
A document  which  is admissible  as evidence  of conviction  is admissible  in any civil proceedings  to  prove  the  facts  on  which  the  conviction  is  based. The information, complaint, indictment in the charge – sheet may be used for this purpose
In sum, secondary evidence of the contents of the following documents may be given provided the originals themselves would be admissible:
⦁    Public or judicial documents or a private one required to be registered or enrolled.
⦁    Document that has been lost or destroyed provided that the existence and search (if lost) has first been proved.
⦁    Document in the possession of a stranger or adversary who requires producing document of which production is physically impossible or highly inconvenient.
⦁    In interlocutory proceedings
 

EXTRINSIC EVIDENCE OF DOCUMENTS

Extrinsic evidence means evidence relating to a contract but not appearing on the face of the contract.   It comes from other sources such as statements between the parties or the circumstances surrounding the agreement. It is extraneous evidence. The general rule is that extrinsic evidence is inadmissible to add to, subtract from, vary, alter or contradict a written document that is not ambiguous.
A  written  document  is  deemed  fit  to  be  a  complete  and  conclusive  record  of  the transaction.   No evidence therefore may be given to prove the terms of the transaction, except the document itself or where the laws direct otherwise.
Suppose A advertises   his parcel of land for sale.  The land comprises   Black acre, Green acre and White acre.  A and B   enter into an agreement  in writing for the sale of white acre and Green acre in Garki Abuja, B cannot be heard later to complain that there was  complementary   verbal  agreement  that  Black acre  was  included  in  the  original agreement that is in writing. 

Exceptions:
Extrinsic  Evidence  of  a  written  instrument  or  documents  may  be  admissible  in  the following cases: 

• To impeach the document for want or failure of consideration, incapacity of parties, illegality,    mistake, fraud,   and   innocent    misrepresentation,  undue influences, forgery etc. This shows that there is no valid transaction or any such matter as would entitle a party to the document to a judgment or order relating to it.
• To show that a deed appearing to be a sale is, in fact, a mortgage. 
• To show that the written record has been wrongly dated. 
• To show that the writing was not meant to be the record of the transaction, or the complete record of it. 
• To prove a condition precedent to any delegation under a contact or disposition of property. 
• To add supplemental or collateral terms contained in separate agreement. 
• To incorporate local or trade custom. 
• To show a subsequent oral agreement, varying or rescinding the written instrument. 
• To connect two or more written documents, which refer to each other in the transaction. 
• To prove a legal relation created by a document when only the existence of such relationship is involved and not the terms of the document. 
• To show that a document  was executed  with an intent contrary to the presumption  raised  by the  equitable  doctrine  of  satisfaction. 
• To prove a contract  where proof of part performances  is accepted in place of a statutory memorandum 
• To   translate   the   document   (e.g. documents in foreign language, signs, abbreviations, nicknames, illegible characters). 
• To explain the terms now obsolete but used in an ancient document. 
• To explain scientific or technical terms
  

⦁    To explain common words (e.g. where parties use words in a particular sense with secondary meaning.
⦁    To explain where the words used have a special meaning (e.g. trade usages or not being contradictory to the document.
⦁    To show the circumstances of the parties or one of them.
⦁    To identify parties ,persons and things
⦁    To explain ambiguity – latent, patent or equivocation. 

Rescission or variation of a written instrument:

An obligation under seal can only be varied or rescinded by a deed. The doctrine of equity holds a contrary view - Berry v Berry (1929). Since equity prevails, a contract in writing or evidence in writing may be varied by a later parol agreement. However, if the law declares that “writing or a memorandum in writing” is a condition precedent to an agreement or contract, it can only be varied by a subsequent contact, which is itself in writing.    For example, the Statute of Frauds states that a contract concerning land must be evidenced in writing.  If then P agrees in writing to sell an acre of land to D, any subsequent oral contract between P and D would not suffice to confer on D any good title to any of the plots as such oral agreement would be offensive to the Statute and therefore inadmissible.

But then, specific performance of the contract as varied orally is permissible in three situations, namely:
⦁    Where the absence of writing,  is not specially pleaded
⦁    When, through the  defendants fraud, no memorandum was signed
⦁    When  the  plaintiff  proves  acts  of  part  performance  or  verbal  variation  which unequivocally refers to it. 

A prior written contract can always be rescinded expressly by a subsequent oral agreement. But the subsequent contract itself cannot be sued upon by reason of want of writing or written evidence.
In Morris v Baron & Co (1918), an action for $800 was settled by oral agreement which both rescinded the original written contract and contained a new arrangement.   At the time, the Sale of Goods Act 1893 had provided that a contract for the sale of goods of $10 and upwards had to be evidenced in writing. The House of Lords held  that  oral  agreement   was  valid  to  rescind  the  former  written  agreement, but unenforceable as to the new arrangements made.
Extrinsic evidence will not be admissible in the following:
⦁    Of a party’s direct declaration of intention
⦁    Where there is no ambiguity in the language or merely grammatical ambiguity
⦁    Where the language is so vague or imperfect that no extrinsic evidence would be mutually equivalent to making a new document.
⦁    Where the interpretation sought to be given would conflict with some rule of law or construction.  

Interpretation of Written Document
Words used are taken in their “ordinary popular meaning” and as modified to produce sense and consistency, except where it is apparent that the words have been used in some other sense.
 

When extrinsic evidence is not admissible

The Court is concerned with the document itself.  What the parties have expressly stated in the document is what they really intended. Thus, extrinsic evidence is not admissible if the words of a document are clear and unambiguous. A party cannot be heard therefore, to  say  that  although  the  parties  have  expressed  certain  things  in  words,  they  really intended something different. However, the Court may depart from the words used and receive extrinsic evidence if: 

• the expressions which are contradictory, 
• there is a single expression, which is against the general term or of the document. 
• it considers the document as a whole. It construes the meaning of terms from what has gone before and what follows (i.e. ex antecedentibus et consequentibus).
  

The court is always anxious to uphold a document, if possible, else, it should fail for uncertainty (i.e ut res magis valeat quam pereat: let it rather be valid than perish). Hence, the intention of the parties which the Court so construes prevails over the words so expressed. This is why a deed may be read in two ways  – one reading which makes its object unlawful and the other lawful - the latter is given  effect, e.g the cypress doctrine which applies to charitable trusts.

Extrinsic evidence in aid of interpretation may also be admissible to prove the following:
⦁    Knowledge and  circumstances  of this writer – his or her identify
⦁    The extent of the objects referred to in a document;
⦁    The particular sense in which certain words are used.
⦁    Whether  those  words  were  not  used  in  their  primary  or  ordinary  sense;  the surrounding circumstances in which used – trade and habits of speech.
⦁    Situation:   falsa demonstration  non nocet; i.e where words (are used correctly in one part and incorrectly in another part, or (apply partly to one subject matter and partly to another, or (have both ordinary and local or particular meaning, extrinsic evidence is admissible to show that which was intended.
⦁    To resolve ambiguity or an equivocation.  Equivocation refers to a situation where words used fit two persons or things, or where it fits one person accurately and another popularly or both equally and subject to common inaccuracy.
⦁    To  explain  technical,  local  or  foreign  terms  by references  to  dictionaries  and expert evidence.
Any ambiguity which does not answer the above description may be incurably bad for uncertainty.  - Union Bank of Nigeria Ltd v Professor Alvert Ojo Ozigi (1994), where Adio JSC expressed the following guiding principles:
1. The general rule is that where the parties have embodied the terms of their contract on  a  written  document,  extrinsic  evidence  is  not  admissible  to  add  to,  vary, subtract from or contradict the terms of the written instrument. See  also  section  131,  Evidence  Act,  2011;  Olaoye  v  Balogun  (1990),  Eke  v Odolofin (1961), Macaulay v Nal Merchant Bank (1990), Molade v Molade (1958).
2. The operation of the parol evidence rule is not limited to oral evidence.  It extends to extrinsic   evidence   in writing,   such  as  drafts   of  agreement,   preliminary agreements and letters relating to previous negotiations.
3. Extrinsic evidence is not admissible as to what passed between the parties before the execution of a written agreement or during its preparation.   For example, the court may refuse a document as inadmissible because it constitutes extrinsic evidence intended to be used to contradict a mortgage deed.
4. Where a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning.
5. Where the words  of any instrument  are free from ambiguity  in themselves  and where the circumstances of the case have not created any doubt or difficulty as to the  proper  application  of  the  words  to  claimants  under  the  instrument  or  the subject matter to which the instrument relates, such an instrument is, as a general rule, always to be construed according to the strict, plain and common meaning of the words  themselves.    It is wrong to import into Mortgage deeds extraneous matters, such as the requirement that the party should obtain the prior consent or give prior notice of increase in the rate of interests on the loan to the other. This doctrine has been applied and followed by the Apex Court in Nigeria.  

Refreshing Memory from a Document
Subject to certain conditions, a witness may refresh his memory from a written document while giving evidence. This type of evidence is oral, not documentary. The written record must have been made:
⦁    By the witness or on his or her direction from his treaties e.g expert witness.
⦁    Upon matters within his own knowledge
⦁    Within a time after the transaction as to still be fresh in his memory or read through while the matter was still fresh in case of records made at his direction.
⦁    Before any controversy in the matter arose.
A  witness,  with  the  permission  of  Court,  may  validly  refresh  his  memory  from  the document. The practice has the merit of:
⦁    The writing reviving the witness’s recollection of facts;
⦁    Creating in his mind, a belief that when the writing was made, he knew it to be correct
⦁    The witness being satisfied that it would  not have been made if it was not true;
Examples  of  documents,  which  courts  have  permitted  to  be  used  to  refresh  oneself include:
⦁    Entries made by a tradesman in the book of orders actually made
⦁    Entries in a diary
⦁    Tape recorder being replayed in court  

Any document which is tendered as a proof of its contents is hearsay evidence and it is as a general rule inadmissible.  However extrinsic evidence may be admitted to:
a. Vary, or contradict a public document, not being a judicial record e.g the Register of slips.
b. Vary, or contradict a private document – informal or inter alois e.g a receipt.
c. Modify or rescind at any time before breach and by oral agreement any written transactions which statute requires to be in writing show that the document or transaction is invalid.

Extrinsic evidence may supplement, but not contradict the terms of a private formal document for proving terms that are omitted,  proving collateral agreement or warranty or proving that the contract was subject to a custom (not inconsistent   with   its   terms). Extrinsic evidence shows that the document in question is not a valid record of a transaction (i.e. forgery) or that the transaction as recorded is itself invalid, want of consideration, or by reason of fraud, mistake or illegality. Extrinsic evidence may also be admissible to prove the true nature of a transaction and relation of the parties such as evidence showing that a conveyance is in fact a mortgage or that an agency relationship exists between parties.   

The  Evidence  Act  defines  document  in  section  258  and  provides  for  documentary evidence in parts v and vi and more particularly in section 85 -107, and 108-130. The contents  of  a  document  may  be  proved  by  primary  or  secondary  evidence, depending on the requirement of the law and the nature of document (section 85 - 89, Evidence  Act).   As a general rule, extrinsic evidence is inadmissible (although with exceptions)

 

1) In what circumstances is extrinsic evidence of a document admissible?
3) What is a latent ambiguity?  How is it different from a patent ambiguity?

If the document is a public document, the general rule adjusts to permit the copies instead of the original. This is because, getting the original is almost impracticable (an exception to the general rule)

The general rule is that all documents to be admitted in evidence must be original copies unless in exceptions. However for Primary forms we have that:

• For documents executed or prepared in parts, each part is an original. e.g, land sale documents, election result sheets etc..
• For documents executed in counter parts, (counters a part) each counterpart is a primary evidence e.g a deed of sale of land where the vendor countersigns the purchaser in execution of the deed.
• For documents produced through a uniform process e.g textbooks, photographs, etc, each copy is an original copy.
• In cases where the original document cannot be found, the provision of a secondary form of the document is allowed. The forms of secondary forms accepted by the Evidence Act are
• Certified true copies
• copies made from an original (mechanical/electronic processes like scanning and photocopy)
• counterpart of documents as against parties who did not execute it (secondary). If the party executes it, it is primary.
• Oral account
• Documents compared with the original

The cases in which documents relating to secondary evidence may be given (Section 90) include:

• When the original is in possession of an adverse party
• When the existence, condition or content of the original has been proved or admitted by the adverse party.
• When the original has been destroyed and all efforts to get it are abortive.
• When the original is of a nature that is not moveable e.g inscription on walls, tombstones etc.
• When the original is a public document (Section 105) 
• When the original is a document with a certified copy
• When the original consists of numerous accounts and brings inconvenience to the courts
• When the document is an entry in a banker's book (Section 90(1))
• Seamen can give secondary evidence (Section 90(2), Evidence Act)
  

Questions

1. There are no degrees of secondary forms of documentary evidence. Discuss.
2. What is the rationale for admitting secondary form of documentary Evidence? Is convenience a rationale? (Yes)