Abstract                                      

A cardinal principle of admissibility of evidence under the Nigerian law of evidence is that for any evidence to be admissible, it has to be relevant to the fact (s) in issue or any other relevant fact. However, a document though relevant to a fact (s) in issue or other relevant fact (s) may be rendered inadmissible by various reasons one of which is where such a document is captioned expressly or by reasonable inference, “without prejudice.” This situation is so because where parties are contemplating, or have resorted to, litigation as a means of settling a dispute, they are not foreclosed to explore amicable settlement as Alternative Dispute Resolution (ADR) is a statutorily recognized dispute resolution mechanism in Nigeria. This paper examines generally the issue of admissibility of documents under the Nigerian law of evidence. It argues that, where a document is marked “without prejudice” the intention of the marker is to render it inadmissible. It further examines circumstances under which a document marked without prejudice though relevant will be inadmissible and when a document purportedly marked “without prejudice” will still be admissible. It compares the concept of “without prejudice” under the repealed Evidence Act and the new 2011 Evidence Act with the finding that, without prejudice is now a statutorily recognized exclusionary evidential provision in Nigerian Law of Evidence. The paper highlights circumstances under which without prejudice should not be used on a letter. The paper finds that, without prejudice cannot be used as a sham to blindfold the court from admitting a document. It is therefore recommended that the relevant section should be amended to read communication made during negotiation and not just documents marked without prejudice to statutorily capture documents not so marked which is what is in practice.

                                             CHAPTER ONE

GENERAL INTRODUCTION

1.1        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.[1]Section 88[2] 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 tested[3] 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.[4]

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 Examination[6]

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.[7] 

In Dr. Torti vs Ukpabi[8]. 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.

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. 

Evidence is a means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation[9]. Evidence, include all means by which a fact in issue is established or disproved; thus, evidence may include documents and tangible objects[10]. Evidence, is that which, in a Court of justice, makes clear, or ascertains the truth of the very fact or point in issue either on the one side or on the other. Any matter, lawfully deposed to on oath or affirmation, which contributes to the elucidation of any question at issue in a Court of justice[11].

Oral Evidence is the statement of a witness in Court which is offered as evidence of the truth of that which is stated. This is the most common type of judicial evidence and “all facts, except the contents of documents, may be proved by oral evidence[12].

The rules of evidence control the presentation of facts before the Court. Their purpose is to facilitate the introduction of all logical and statutory relevant facts with a view to establishing the truth or otherwise of any assertion of a party in a litigation. Thus, the

Law of Evidence regulates:

(a)      What matters are not admissible before the Court and

(b)     The methods by which admissible facts are placed before it.

Therefore, the Nigerian Law of Evidence seeks to guide judges or trials of facts based on the assertions of parties to deduce the truth or otherwise of the facts in disputes for the purposes of determining the claims, charges and defences of the respective parties before the Judges or trials of facts.[13]

When a dispute, whether relating to a civil or criminal matter, reaches the Court there will always be a number of issue which one party will have to prove in order to persuade the Court to find in his or her favour. The Law must ensure certain guidelines are set out in order to ensure that evidence presented to the Court can be regarded as trustworthy.[14]

The word, Evidence is traceable to the Latin verb, evidences-evidere which means to show clearly, to make plainly; certain; to ascertain; to prove[15].

It is submitted that, evidence can be defined as the admissible ways of proving a fact in issue which must be in consonance with the substantive Law.

1.2        Statement of the Problem

A Court, faced with the problem of determination of a suit before it, can solve such a problem only after making an inquiry into the relevant facts of a case as put before it by the parties, drawing reference from those facts and listening to arguments of parties to the case or the Legal Practitioners representing them.18

It is common knowledge that a fact can be proved by the oral testimony of persons who perceived the fact or by the production of documents or by inspection of things or places.[16]Law of Evidence is one area of Law that is very complicated and difficult to explain by theories even by those who claim to have understood it more specifically the Lawyers. Hence Dean Wright C. A. once noted that “Certainly no one save a Lawyer can understand the Law of Evidence and no Lawyer though he admits to understand that Law could explain it”[17].

The primary means of proof under the Nigerian Law of Evidence as sanctioned in the Evidence Act include confession, oral testimony, real evidence and documentary evidence. These are the most important and prominent means of proof under the Nigerian Law of Evidence.[18] Documentary evidence and its admissibility as one of the most important means of proof under the Nigerian Law of Evidence has indeed generated a lot of problems to Lawyers, Judges, Scholars, and Students. 

The first question or problem relates to the separation of sections that provided for the circumstances in which secondary evidence can be admissible and the modes of proof as seen in sections 89 and section 90 Evidence Act[19].  This poses difficulties in interpretation and application by the Courts, Lawyers, teachers and especially to Students of Law. 

There are five subsections in section 83[20]. Section 83 constitutes a sort of nightmare to many Students. There are occasions when even Practitioners appear confused about the application of its provisions to practical situations,[21] for instance the legislatures avoided using simple language in the use of the word provided, except, unless and the failure of the Act not defining the nature of electronic signature under section 83(4) the evidence Act25. 

1.3        Aim and Objectives of the Study

The aim of the study is to subject the Law on admissibility of documentary evidence under the Nigerian Evidence Act to an in-depth analysis.

(a)           To appraise the rules on admissibility of documentary evidence under the Nigerian Law and to ascertain what factors determine the admissibility or inadmissibility of documentary evidence.

(b)          To examine the extent to which computer generated evidence is made part of admissible documantry evidence under the Evidence Act 2011.

(c)           To profer recommendations on how best problems associated with admissibility of documents can be solved.  

1.4        Justification

This study is beneficial to all those who come into contact with Law and litigation to know how facts in issue and relevant fact as contained in the document are expected to be proved pursuant to the substantive Law for its admissibility and its impact in the administration of justice. 

It is hoped that the results and recommendations of this study will be beneficial to Judges, Legal Practitioners, Legal Academics, Students of Law, institutions of higher learning etc.. Furthermore, this research will be an additional reference material in Law of Evidence under Nigerian Law.   

1.5       Scope of the Study

The scope of this study is intended to provide conceptual insights into the documentary evidence which is part of modes of proof, under the Evidence Act. Documentary evidence is wide. It also includes presumption, affidavit, pleadings  but the researcher is restricted to make an appraisal as to the admissibility of documentary evidence under the Nigerian Evidence Act 2011. 

This study will also include significance of the documentary evidence under the Nigerian Law of Evidence. Brief and necessary explanations of some issues may be made for the purpose of clarity for the achievement of the main objectives of the study. 

1.6       Research Methodology

The legal research methodology adopted in collecting information, is doctrinal method.

The Doctrinal research is priori research method which involves research relying on primary sources such as statutes, Case Laws etc. However, other approaches or techniques of research like secondary materials such as textbooks, periodicals like Journals, where necessary, may be used to facilitate the completion of the study and the achievement of the objectives of the study. The use of internet references and other materials would also be used.

1.7       Literature Review

There are several contributions made by both Nigerians and foreign scholars in respect of admissibility of documentary evidence. 

Agom Augustine Robert‟s[22] analyses which states that only the certified true copy of public documents is admissible is in support of the decision given by the Tribunal in the case of Daggash vs Bulama[23] but contradicts the unanimous decision of the Court of Appeal delivered by the lead judgement, Obadina J.C.A. holding that public documents are provable by the original. Agom Augustine Robert[24] stated that the ratio decidendi has thrown up controversial issues in our Law of Evidence.  

It is submitted that, looking at section 86, 88, 89(e), and 90(c) of the Evidence Act, the researcher concurs with his view that only certified copies of public documents are admissible in evidence because it does not contradict the principles of the Evidence Act.  

In the view of Babaji Bala[25] which did not support Agom Augustine Robert‟s[26] opinion which states that the proof of content of public document is only achieved by the production of its certified true copy and not by original, is in accordance with the provisions of the Evidence Act especially section 86, 87, 88, 89, 89(e) 90(c) and 102.

Babaji Bala[27] in his dissertation, supported the view held by scholars and by some judicial pronouncements that the content of public document may be proved by either original or secondary evidence in form of certified true copy and not necessary that you must produce the original if the certified true copy is available.

This view with due respect, to an extent, misconstrued the provisions of the Evidence Act sections 85, 86, 88, 89, 89(e) and 90(c) because notwithstanding that section 85 provided the general way of proving document which is by primary (original) or by secondary evidence, Section 86 now provided that primary evidence which is document itself is produced for inspection of the Court and not for proof which is for establishment of a fact in issue. 

Section 88 listed exceptional grounds or cases where secondary evidence is admissible in which section 89 provided for the conditions for the admissibility of this secondary evidence which included public documents as defined by section 102. Section 89(e) provided where the original is a public document within the meaning of section 102 and for proof section 90(c) provided that the nature or type of secondary evidence is by certified true copy and no other secondary evidence is admissible.

On the issue relating to whether photocopy of certified true copy of a public document is admissible without further proof of certification, Babaji Bala[28] in his dissertation justified the view that photocopy of a public document whether or not certified is inadmissible and has no place under the Evidence Act as decided in Fawehinmi vs IGP[29] 

The support is a pitfall in interpretation of section 97(1) (e) and (f) (now section 89 (e) and (f), section 97 (2) (c) (now section 90 (1) (c) Evidence Act 2011. This is because notwithstanding that Babaji Bala is right in his support that photocopy of a public document is inadmissible and has no place under the Evidence Act. There is a misconstruction of the Act by adding that whether certified is also inadmissible because going by the provision of section 89 (e) and (f) provided for where secondary evidence is admissible is also related to public document in which for its admissibility under S. 90 (1) (c) the kind of secondary evidence admissible is certified true copy.

Again Babaji Bala‟s[30] dissertation justified the view that on the admissibility of photocopy of certified true copy of public document, that such kind of secondary evidence is admissible and there is no need for further certification in which the Court of Appeal, per Edozie J.C.A in Raymond Ihuonu and Another vs Simon Obiukwu[31]  held that while photocopy of a public document simplicita is inadmissible, photocopy of a certified time true copy of a public document is admissible. This position is supported by Magaji vs The Nigerian Army[32] and Daily Times of Nigerian Plc vs F.R.A Williams[33].

This view having been justified by Babaji Bala, with due respect, is ab initio (from the beginning) erroneous because the photocopy of a certified true copy of a public document is inadmissible by virtue of section 89 (e) and (f) section 90 (1) (c) What is admissible is a certified true copy of a public document as held in Shell Company Ltd. vs Nworlu[34] which this dissertation is in support.  Babaji Bala[35] in his dissertation stated that Law of Evidence being a branch of Law of practice and procedure is primary among others given the role of regulating the admissibility of any means of proof of whatever kind of evidence including electronic evidence in the Courts of Law or tribunals. 

Therefore, when reference is made to the question of admissibility of electronic evidence, it means, recognition or acceptability of a specie of evidence generated, produced, stored or processed by electronic devices, using primarily computers and their accessories, like discs, CD, Video clips, tapes, microfilms, hard disks, print out etc in the Courts for proof of a party‟s rights, obligation and liabilities. 

Thus, computer or electronically generated evidence has inevitably remained a matter of concern in the context of the traditional conception of document as codified under the Nigerian Evidence Act. On several issues or problems associated with the admissibility of electronically or computer generated information or evidence, Babaji Bala‟s dissertation observed that as the Law in Nigeria stands today, particularly, the Law of Evidence as contained in the Evidence Act, that no direct answers or solutions are available. 

Several questions and issues have been posed relating to the legal framework for the evidential status and admissibility of electronic evidence[36]. Some of such questions or issues are in the face of the noticeable differences between the seemingly outdated provisions of the Evidence Act 2004 and the growing societal developments in science and information technology and other innovations and what will be the most pragmatic solutions or approaches too them? Could it be by adopting judicial approach is allowing Case Law to develop the rules or by legislative enactments or by both approaches used together? Other legal issues or questions include:

(i)                 Whether computer print-outs are admissible in evidence (in both civil and criminal proceedings)?

(ii)               Whether computer and other electronic data storage and generated devices are themselves documentary evidence?

(iii)             Whether electronic or computer print-outs and other storage devices are presumably taken as documents (which seem to be general inclination of many writers and judicial understanding in Nigeria) will such electronic data document or evidence be admitted as original or secondary evidence, having regards to the present requirement of proof of contents of primary and public documents and the old common Law rule of best evidence. Also relevant to ask is how do we handle the question of proof of due execution of document especially private document in electronic form it is by the use of ordinary handwritten signature or a document or by the use of modern electronic form of personal identification numbers (PIN)?

(iv)             Whether electronic data or documents can be admissible as one of the several exceptions to the rule against hearsay? 

(v)               Whether affidavit evidence can be utilized to admit in evidence computer generated documents and other electronic devices in our Courts?

In view of the above statements on the admissibility of statement in document produced by computers and other electronic devices, section 84 (1) of the Evidence Act 2011 provided that in any proceeding which means both civil and criminal proceeding that a statement in document produced by computer shall be admissible in evidence of any fact of which direct oral evidence would have been admissible once the strict conditions stated in section 84 (2) and (4) are complied with; that the document which contained the statement was produced by computer when the computer was in use, by anybody or corporate; that the information in the document was regularly supplied to the computer in the ordinary course of those activities; that the computer was functional and when it was not functional that it did not affect the accuracy of the content of the document and in Section 84(4) certificate which identifies the document describing the manner of production, giving the particulars of such device and shall be signed by a person occupying a responsible position in respect of the operation of the relevant device or the management of the relevant authorities stating to his best of his knowledge and belief that it is the true fact or matter.  

A clear decision was made in the case of Dr Imoro Kubor vs Seriake Henry Dickson[37]. In this case the Supreme Court upheld the dismissal of the appeal at the Court of Appeal simply because exhibit “D” and “L” which were internet print outs of Punch Newspapers and list of candidates posted on INEC‟s website respectively tendered from

the bar and admitted in evidence by the appellant‟s counsel were not tendered in compliance with the requirements of section 84 of the Evidence Act 2011 which provided for the framework on the admissibility of statements in document produced by computer. Therefore, by virtue of the above provisions, statements produced from computers or other electronic data are documentary evidence and admitted as secondary evidence as stated in Anyeabosi vs R.T. Briscoe[38]. Section 87 Evidence Act 2011 also provided that copies made from electronic processes are secondary evidence.

By virtue of section 84 (1) which provided for where direct oral evidence is admissible that statement made in document produced by computer shall be admissible as evidence  of any fact stated in it which means that section 84 (1) provided for computer print out as an exception to hearsay evidence because where oral evidence is supposed to be given directly by the maker once produced from computer or any electronic device with the conditions complied with, that it is an evidence of the fact or matter stated in the document. In respect of the issues of affidavit evidence section 84 (4) (c) specifically provided in support of the statement produced by computer that for it to be sufficient matter that statement shall be made to the best knowledge and belief of the person which means that it must be deposed on Affidavit. The Affidavit evidence can be utilized to show sufficiency or compliance to the conditions as an evidence of the matter stated.

In respect of the question as to proof of due execution, for any document to be admissible and be given any evidential weight, proof of its authorship or due execution is necessary and may be easily be obtained where hard papers are used and the maker appends his signature. Where a document is in electronic form or electronically generated, proof of its authorship and due execution can also be done since section 104

Evidence Act provided for the admissibility of a secondary evidence that the conditions to be established in respect of certified true copy of a public document are; that payment of the legal fees prescribed 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 ease may be dated and subscribed by such officer with his name and his official title and shall be sealed is the bases for such copies so certified to be admissible as certified copies.

Section 101 (1) Evidence Act 2011 also provided that to know if a signature, writing, seal or finger impressing is that of the person, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved also that signature, writing, seal or finger impression has not been produced or proved for any other purpose.

Section 101 (2) Evidence Act 2011 also provided that the Court may direct any person in Court to write word, figure or to make finger impressions for the purpose of enabling the Court to compare the words, finger or finger impression alleged to have been written or made by such person. Therefore, because electronic or computer print-out and other storage devices are admissible as documentary evidence the same procedure to prove the execution of private and public document for its authorship or proof of due execution is the same for proof of due execution of private document in electronic form. This can also be by ordinary handwriting which has to be signed through electronic device for the purpose of comparison by the Court with the alleged writing made by such person, as provided by section 101 (2) Evidence Act 2011 and section 93 (3) which provided, that it can be done in any manner. Section 93 also provided for proof of electronic signature. Provided the requirements in the Evidence Act are complied with.

There are other writers such as Phipson Sidney Lovell, Cross R, Stephen James Fitzjames, Nwadialo Fidelis, Aguda T. Akinola, Osinbajo Yemi etc, who among other things, defined evidence, documents, documentary evidence and the admissibility of documentary evidence. The researcher briefly reviews below, some of the central contributions of these scholars.

Osinbajo Yemi observed that the Nigerian Law of Evidence as well as judicial interpretations of some provisions of the Evidence Act with a view to accommodating electronically generated evidence as specie of documentary evidence are inadequate and not clear and even sometimes leading to absurdity[39].

 Osinbajo Yemi asserted that there are differences between paper and paperless transactions. The advent of paperless transaction (which represents electronic record or data or documents) has exposed the present concept of document used in the Evidence Act. Therefore, Osinbajo Yemi submitted that electronically recorded or generated records are for example recorded in magnetic materials to describe such records as inscriptions on substance would be absurd[40]. He noted that certain computer related records in the form of tape recorded evidence, cinema firms etc were accepted as documents and species of documentary evidence and same extended interpretation of documents may be allowed in Nigerian Courts.

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