There has been diverse opinion held and expressed by lawyers and legal scholars as to the admissibility of the original copy of a public document. Some scholars are of the opinion that such document is inadmissible as the only source of such admissibility still remains the certified copy (CTC) of such Public document. Others are of the opinion that such document (original copy of a public document) is admissible as it is the primary document itself and any refusal of such primary document will be inconsistent with the Evidence Act, which clearly provides that a primary document is admissible with no further proof or need to lay proper foundation or need to seek the leave of the court to tender any primary document.
To fully appreciate this question, one must ask what is a public document?
Section 102 of the Evidence Act defines the following as public documents:-
(a) documents forming the official acts or records of the official acts –
(i) of the sovereign authority;
(ii) of official bodies and tribunals;
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere;
(b) Public records kept in Nigeria of private documents.
what is the position of the law when the original copy of a public document is made available in court?
The Evidence Act provides that where a secondary evidence of a public document is to be tendered in evidence, only the certified true copy will suffice. There have been questions as to what happens if the original public documents are available. Will same be held admissible in evidence?
The controversies have finally been put to rest in the case of KASSIM v. STATE (2017) LPELR-42586(SC).
EKO J.S.C while delivering the leading judgment rightly observed as follows “…suffice that I mention that the Courts are not unanimous on whether; where original copy of a document forming part of public record is available, the secondary evidence of it, as opposed to the original and primary evidence of it, is the only legal evidence admissible in evidence and it is illegal to prove its contents by the production of the original copy”
He then went further to say:
“Now, what really is the essence of the demand for a certified true copy of a public document? I think, and in agreement with Adekeye, JSC, in GODWILL & TRUST INVESTMENT LIMITED v. WITT & BUSH LIMITED (2011) 8 NWLR 500; (2011) LPELR – 1333 (SC), the essence of demanding for a certified true copy of a public document is the assurance of the authenticity of the document vis-a-vis the original. And so why go for that assurance in the certified true copy vis-a-vis the original, when the original is available? And so, when the cap is in the market, the head is also in the market; there is no further need to take the cap home from the market in order to test it on the head. I, therefore, agree with the Court below that where the original copy of a document is available, it is admissible without the requirement of certification”
OGUNBIYI, J.S.C supported the lead judgment to the effect that original of public documents are admissible in evidence when he said: “By the combined effect of Sections 86, 87, 88, 89, 90, 102 and 103 of the Evidence Act, 2011, documents (Public or Private) may be produced in Court by tendering either the original of the document itself or the copy thereof known as secondary evidence: but a party relying on secondary evidence of a public document must produce the certified true copy and no other copy thereof is admissible.”
Further, KEKERE-EKUN, J.S.C, in her own contribution was also in support of the admissibility of the original copy of a public document. In her words, “With regard to the admissibility of Exhibits 1, 2 & 3 and the contention of learned counsel for the appellant that only certified true copies of public documents are admissible in evidence and therefore the original documents tendered in this case are inadmissible. I adopt as mine, the exhaustive analysis of the relevant provisions of the Evidence Act, 2011 carried out by my learned brother, Ejembi Eko, JSC in the lead judgment. In addition, I refer to a similar exercise carried out by me in the recent case of Uwua Udo V. The State (2016) 2-3 SC (Pt. III) 29 @ 47 – 54 wherein I held that a public document tendered in its original form is admissible in evidence by virtue of Sections 85 and 86(1) of the Evidence Act, 2011. I, therefore, hold that Exhibits 1, 2, & 3 were properly admitted in evidence in this case.”
To this extent, the issue as to the admissibility of original copy of a public document has finally been put to rest and the position is that an original public document is admissible before any court of law in Nigeria because the original copy is at best the primary source and needs no further certification by any public officer assigned for such purpose.
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