• Background to the Study

Documentary evidence forms part of the entire gamut of the Law of Evidence. And of course, if a thing is self evident, it does not require evidence.1Section 882 provide that “document shall be proved by primary evidence except in the cases mentioned in this Act”.

It is submitted that, documentary evidence is anything in which statement is written on, which can be on paper, electronic device, walls, trees, rocks, human body or in picture form.

Documentary evidence is one of the major recognised modes of proof. Documentary evidence is thus of such tremendous importance in Court proceedings as it is the yardstick by which the veracity of oral testimony is tested3 it is for this reason that the Law of Evidence permits trial Courts to substitute the eye for the ear in the reception of evidence when the need arises.

Among the three modes of evidence: oral, documentary and real evidence, oral evidence seems to constitute the platform for the presentation in Court of the other two categories. Truly, it is in the course of oral testimony in Court that a document or some kind of real evidence is tendered. In spite of this, the input of documentary evidence  and its significance in the modern probative process seems to almost overshadow the other two categories.5 Steven Uglow, noting the importance of documentary evidence in the probative process stated that:

Documentary evidence is of considerable importance in both civil and criminal proceeding…reliance on documentary evidence is often worthwhile as it is regarded as having greater weight. often the information has been complied closer to the events, and unlike a witness, a document will not be shaken by cross Examination6

It is submitted that, documentary evidence in essence, is of great significance as a means of proof in any proceeding . It speaks for itself once tendered thereby making Court proceedings easier once the specified conditions are followed and the principles also guide the electronically generated evidence once due compliance to the requirements were followed and if proved abortive, will not be admissible in evidence.

Generally, the rule that governs the admissibility of any document is the test of the relevance of such document. It is the pleading of the parties that streamline the relevance issues/facts between the parties. Thus it is required that for any document to be admissible in the High Court or any Court where pleading are listed, the said document must have been duly pleaded or facts in support of the document pleaded in the pleading of party relying on same.

In Dr. Torti vs Ukpabi8. The Court held that even if the document is not produced from proper custody, it is admissible once it is relevant. Lack of proper custody may affect the weight the Court will attach to the document when evaluating it and no more. There are tendencies among Judges, Legal Practitioners, Teachers and Students of Law to confuse conditions of admissibility with that of relevancy and weight of evidence. These terms though related, yet differ in some material respect.

The Nigerian Court of Appeal stated the correct position of the Law on the nature of the relationship of the three terms especially as they affect documents in the case of Unic Insurance Company Ltd. vs UC and IC Ltd.9 the Court of Appeal declared that:

Admissibility is quite different from weight to be attached to such evidence, be it oral or documentary. A document may be admissible in Law yet it may be lacking in evidential value. Admissibility should be based on relevance and not proper custody. Once a matter, be it oral or documentary evidence is relevant, it is admissible, proper custody only raises an issue, of presumption or the weight to be attached to the evidence documentary or otherwise after admission. For evidence, documentary or otherwise to be admissible, it is sufficient that proper ground of its relevance is laid.

It is therefore important to recognize that admissibility of documentary evidence under the Nigerian Law of Evidence as a matter of Law revolves round the rules of evidence on relevancy.10 Due to the importance of documentary evidence in which document once tendered speaks for itself except where fraud, illegality, mistake were seen, anything documented once written and signed it is bases for it admissibility even when original maker is not available once proper foundation is laid, as provided by the Law makes it admissible.

Notwithstanding the importance of documentary evidence, it has generated a lot of problems to Lawyers, judges, scholars, Students of Law etc because of the procedure of tendering the documents in Courts are not sequentially arranged by the Evidence Act 2011. In some cases, conflicting judgements of the superior Courts worsened the confusion in reaching an understanding of what documentary evidence is.