This is perhaps one controversy, that has unfortunately led to a lot of conflicting opinion by Lawyers, law Jurists and Judges. In deciding if a photocopy of a certified true copy of a public document is admissible in evidence, we must first discuss some key terms:
(a) Primary and Secondary Evidence
(b) Private and Public Evidence
(c) Certified True copy
PRIMARY AND SECONDARY EVIDENCE
The Evidence Act 2011 has done a great work of defining and explaining what can be identified as a Primary Evidence:
(1) Primary evidence means the document itself produced for the inspection of the court.
(2)Where a document has been executed in several parts, each part shall be primary evidence of the document.
(3)Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the parties executing it.
(4) Where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the contents of the rest; but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.
See SECTION 86 of the Evidence Act, 2011.”
Also, the meaning of Secondary evidence in this context will be looked from the eyes of the Evidence Act 2011 to restrict our interpretation of the meaning of a Secondary evidence in relation to the question. SECTION 87 of the Evidence Act 2011 says a 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.
PRIVATE AND PUBLIC DOCUMENT
According to Thelawdictionary.org, A Public document is a state paper, or other instrument of public importance or interest, issued or published by authority of Congress or a state legislature. Also, any document or record, evidencing or connected with the public business or the administration of public affairs, preserved in or issued by any department of the government. So anything not of the nature stated above is a private document. To properly understand the distinction between a Public document and a private document, let us resort to the Evidence Act. The Evidence Act 2011 states that:
The following documents are public documents—
(a) Documents forming the official acts or records of the official acts of:
(i) The sovereign authority,
(ii) Official bodies and tribunals, or
(iii) Public, officers, legislative, judicial and executive, whether of Nigeria or elsewhere: and
(b) Public records kept in Nigeria of private documents.
See SECTION 102 of the Evidence Act.
However, going further to SECTION 103 of the same Evidence Act, a Private document was differentiated as it states that: “All documents other than public documents are private documents.”
CERTIFIED TRUE COPY (CTC)
According to Wikipedia, a certified copy is a copy (often a photocopy) of a primary document that has on it an endorsement or certificate that it is a true copy of the primary document. A certified copy may be required for an official government or court purposes and for commercial purposes.
According to the Evidence Act 2011, a certified copy must possess some traits and characteristics. SECTION 104(1)-(3) of the Evidence Act is produced here for proper guidance.
104 (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate 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.
(3)An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.”
From the foregoing, we can clearly see that a certified true copy (CTC) is a photocopied document of an original public document that has been certified by an authorized official for that purpose.
THE POSITION OF THE LAW
Now, placing all the pieces on the top of our discussion, we can now agree that a certified copy is a Secondary Evidence because it is not the original or primary evidence or document but a reproduced copy of the original or primary evidence.
The Evidence Act is very clear on how a document can be tendered in court. The law stipulates that evidence shall be tendered in their primary form of evidence, however, there are exceptions on how a secondary evidence can be tendered in court. For the full appraisal of the general rule and its exceptions, SECTION 88 and 89 of the Evidence Act 2011 is produced here:
“(88.) Documents shall be proved by primary evidence except in the cases mentioned in this Act.
(89.) Secondary evidence may be given of the existence, condition or contents 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 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; or
(h)the document is an entry in a banker’s book. Public document can be tendered which is through their Certified True Copy”
Let also see SECTION 105 of the Evidence Act 2011 which states that:
“Copies of documents certified in accordance with section 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”
Going to the crux of this matter, is a Photocopy of a Certified True Copy of a public document admissible? By virtue of SECTION 87, 102, 104, 105 and 106 of the Evidence Act 2011, only a certified copy or CTC of a public document is admissible as a secondary of such public document. The Court of Appeal has made divergent decisions on the admissibility of photocopies of CTC of public documents. See the following cases:
1. IHEONU V. OBIUKWU (1994) 1 NWLR (PT. 322) 322, particularly at page 594.
2. DAILY TIMES OF NIGERIA V. CHIEF FRA WILLIAMS (1988) 4 NWLR (PT. 36) 526.
In the Daily Times case, the Court of Appeal held that photocopies of Certified True Copies were admissible as evidence but comparing this with the case of SHELL CO. LTD. V. NWAORLU (1991) 3 NWLR 491, the Court of Appeal held that photocopies of Certified True Copies were inadmissible in evidence.
The situation could be viewed from the following perspectives:
1. Where an objection is sorted for, as to the admissibility of a photocopy of a certified copy when such is tendered in evidence, such objection will most likely be upheld by virtue of section 87 and 104 of the Evidence Act 2011 and on the authority of SHELL PETROLEUM V. NWAORLU (SUPRA).
2. If the said photocopy of certified copy has been admitted in evidence without any objection or with the consent of the parties, the applicable rule is that an appellate court would disregard a document, which is inadmissible at all in law. See also the case of OLUKADE V. ALADE (1976) ALL NLR 56.
In the case of MINISTER OF LANDS, WESTERN NIGERIA V. DR. NNAMDI AZIKIWE (1969) 1 ALL NLR 49, the Supreme Court stated as follows:
“The document now marked Exhibit II is not a CTC but a Photostat copy and it is, therefore inadmissible as secondary evidence of a public document which it purports to be. There was no objection to its admissibility when it was produced but it is not within the competence of parties to a case to admit by consent or otherwise a document which by law is inadmissible.”
See also JUSTICE ARAKA V. JUSTICE DON EGBUE (2003) 7 SC 75. It is, therefore submitted that a photocopy of a CTC of a public document is inadmissible in evidence in the course of a trial.
Now the view that is now gaining currently (as against the decision of MAGAJI V. NIGERIAN ARMY which held that a photocopy CTC is admissible) is that photocopy of CTC of a public document is not admissible. In the recent cases of; ITEOGU V. L.P.D.C. and OGBORU V. UDUAGH (2011), it was held that the photocopy of a CTC of a public document is not admissible. And the courts right from the cases of ITEOGU to OGBORU have given a consistent reason for so doing. For instance, in OGBORU’S CASE (SUPRA) which was a Court of Appeal decision but which relied on Supreme Court decision in ITEOGU’S CASE (SUPRA), the Court of Appeal said:
“A photocopy of a certified true copy of a public document must be re-certified because in this age of sophisticated technology, photo tricks manipulation cannot be rule out and 20 evidence produce in the context of S.97 (2) (a) of the Evidence Act could be tutored and therefore not authentic. In the process of copying the original document, it could be manipulated with the result that the copy, which is 20 evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. In most cases, the court is not in a position to detect such manipulation.”
The above decision being a 2011 authority which also followed a Supreme Court decision of 2009, follows the doctrine of stare decisis which means every court is expected to stand by that decision until it is upturned by the Supreme Court, or until the Evidence Act is amended to reflect the contrary. It is therefore settled law, that the only method of tendering a public document as evidence is the certified true copy of the original document and nothing more or less.
In conclusion, I humbly submit that a photocopy certified true copy of a Public document is not admissible as evidence.
WRITTEN BY: Joseph Joci Okusare (Esq)
Joseph is a Lawyer and Solicitor of the Supreme Court of Nigeria. He is the founder/CEO of Legalpanic.com