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CASE LAW REVIEW: SHOULD PHOTOCOPIES OF PUBLIC DOCUMENTS ATTACHED TO AN AFFIDAVIT AS EXHIBITS BE CERTIFIED? By Henry Chibor

The prevalent view amongst legal practitioners is that it is erroneous to raise an objection concerning documents attached to an affidavit as exhibits, particularly where the document is a photocopy of a public document. This view appears to have drawn judicial inspiration from the case of Adejumo & Anor. vs. Governor of Lagos State (1970) All NLR, 187 reiterated in Nwosu vs. Imo State Sanitation Authority (1990) 2NWLR Pt. 135, 688.

The main focus of this discourse is whether it is proper or not to raise an objection concerning a photocopy of a public document attached to an affidavit as an exhibit where such document is not a certified true copy (CTC) of the original document. Exhibit in the context of this discourse refers to a photocopy of a public document. Please note that I am only dealing with reliance/admissibility or otherwise of a CTC of an exhibit attached to an affidavit and not admissibility of a document in a substantive suit.

Judicial authorities, mainly from the Court of Appeal, are divided on whether an objection as to the admissibility of an exhibit on grounds of non-certification should be entertained during interlocutory applications or not. Some approve of it while others hold a contrary view. I do not intend to do a case-by-case analysis of these decisions. However, what is obvious is that those who oppose objection rely on Adejumo’s case while the proponents of objection rely on the relevant provisions of the Evidence Act.

In this brief discourse, I shall examine the principle enunciated in Adejumo’s case relative to the issue at stake, and also the argument canvassed by those who have expressed a contrary opinion. Thereafter, I will take a definite position based on my understanding of the law.

It will be helpful to start by stating briefly the facts in Adejumo’s case. The Appellant filed an application for an order of certiorari seeking to quash certain orders made by the Military Governor of Lagos State. Paragraph 6 of the supporting affidavit states thus:

“That the document now shown to me and marked Exhibit E is a true copy of the proceedings of the said Tribunal on its 45th day of sitting and it contains a true copy of the proceedings before the Tribunal on the 10th April, 1969”

At the hearing of the application, an objection was raised as to the admissibility of Exhibit E on the basis that it was not certified being a public document. The trial court upheld the objection on the basis that same offends Section 8 of No. 41 Decree 1966 and struck out Exhibit E.

Section 8 of Decree No. 41 of 1966 provides thus:

“Evidence taken under this Decree shall be inadmissible against any person in any civil or criminal proceedings whatever, except in the case of a person charged with giving false evidence before the members.”

On appeal against the ruling of the trial court, it was argued that Exhibit E is not evidence given before the Tribunal but counsel’s address in opposition; as a counter argument, the Respondent submitted that counsel’s address emanated from evidence given at the Tribunal and as such, it is caught by the said Section 8.

In resolving the contention, the Appellate Court reasoned that evidence before an enquiry is different from the address of counsel at the enquiry. Furthermore, that Section 8 speaks of admissibility of evidence against any person. It does not say that the evidence is not admissible for any other purpose. Rather, it is inadmissible only if it is to be used as evidence against any person in civil or criminal proceedings.

According to the Appellate Court:

“… the critical question is at what stage should counsel object to the document being made use of in the case. Should the objection be directed to the paragraph or the exhibit in the affidavit before the substantive action is heard or before it is known to what use the document would be put?”

The Appellate Court reasoned that objection should be taken when all the facts are put before the court and not at the preliminary stage. The court eventually held that the learned trial Judge was in error in striking out Exhibit E.

Based on the foregoing, it is obvious that it was the issue as framed by the Appellate Court and its response to it that has formed the basis upon which it has been generally accepted within legal circles that it is improper to raise objection to an exhibit during interlocutory application.

But the above interpretation or principle of law derived from Adejumo’s case appear to be waning fast as the reasoning in that principle loses traction when subjected to the test of admissibility from the perspective of the Evidence Act which is the primary law governing admissibility of evidence, including exhibits.

The proponents of objection to an exhibit that lacks certification draw inspiration from a recent decision of the Court of Appeal. It is also that case that informed my decision to share my personal conviction on the subject through this discourse.

In Osayomi vs. Gov. Ekiti State (2014) All FWLR (Pt. 751), 1573, the Applicant sought for extension of time before the Appellate Court to appeal against the decision of the lower court which struck out a suit on grounds that a statement of claim was not signed, dated or filed in the suit. The Applicant contended that a valid, signed and dated statement of claim was filed while the Respondents, in reaction, filed a counter affidavit and therein exhibited an unsigned, undated and unfiled statement of claim and marked same as Exhibit B. It was contended by the Respondents that the lower court relied on Exhibit B to strike out the suit. Instructively, Exhibit B which was alleged to have emanated from the lower court was not certified.

It was the non-certification of Exhibit B that brought to the fore the subject of our discourse.

From the line of authorities that I have considered, certain points stand out for consideration and they are as follows:

  1. Adejumo’s case did not consider the provisions of the Evidence Act in relation to admissibility of evidence.
  2. Can it be safely said that Adejumo’s case enunciated a general principle to the effect that objection cannot be raised against an exhibit for all purposes even if a proceeding will be conclusively determined based on affidavit evidence only?

In addressing the first point above, it is not in dispute that admissibility of a document, including an exhibit, is governed by the provisions of the Evidence Act. By virtue of Sections 89(e) and 90(c) of the Evidence Act, 2011 only a certified true copy of a secondary evidence of a public document (exhibit) is admissible. The said provisions of the Act did not make an exception as regards secondary evidence of a public document and therefore making it an exhibit in an application cannot be a basis to circumvent the clear requirement of the law.

Furthermore, it will amount to a gross violation of the above clear requirement of the law where parties and the court allow an uncertified exhibit to be admitted in evidence or relied upon at an interlocutory stage regardless of the fact that parties cannot by consent render admissible otherwise inadmissible evidence (exhibit). Clearly, from the perspective of admissibility, Adejumo’s case cannot be an authority to stop an objection against an exhibit which falls short of the requirement of certification.

On the second point, there are many judicial proceedings that are conducted solely on affidavit evidence. To suggest that an objection as to the admissibility of an exhibit should not be raised in such proceedings is to feign ignorance of the fact that there will never be a substantive or another stage when it will be ripe to do so. The question is – where at the first instance, an exhibit ought to be admitted or relied upon by the court, why would I keep mute and allow its admissibility, particularly where the law has expressly excluded such document from being admitted in evidence?

Conclusion:

I am convinced that Adejumo’s case must have been generally misunderstood as I do not see the connection between that case and the admissibility of an exhibit that is not a CTC under the Evidence Act. I am also of the opinion that it is safer and logical to certify an exhibit where certification is required before using it in an interlocutory application.

Henry Chibor is a Partner in Solola & Akpana based in the Firm’s Port Harcourt office. He is also the current Chairman of the Port Harcourt Chapter of the Chartered Institute of Arbitrators (UK), Nigeria Branch.

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