Admissibility of secondary documentary evidence: Nigeria and India in focus

The admissibility of a copy of a document, the original of which is not before the court has been one of the most abused procedures in our judicial architecture. In this era of digital technology, the window has been opened for litigants to tamper with the content of originals of documents, make copies of the tampered version of the original and mount the witness box to state on oath that the original of the document went missing when he was changing office, or during an inferno in his office or residence, or under various other circumstances. With such a statement, the witness is presumed to have laid sufficient foundation for the admissibility of the copy of such a document.

It is noteworthy that, on many occasions, the court and the opposing party become aware of this position, for the first time, during the evidence-in-chief of the party concerned. It is nowhere contained in the pleadings of the concerned party, that the party’s office or residence suffered any such mishap or that there was a relocation of the office or home. Many courts and, even, counsel do not see anything improper in this practice of failing to lay proper foundation for the admissibility of such secondary evidence, and will neglect to oppose the admissibility of such document, once foundation has, seemingly, been laid.

A case that quickly comes to mind is the recent fire incident that gutted part of the Accountant General of the Federation’s office in Abuja. Hours before that incident, there was controversy concerning the way and manner in which the Federal Government’s palliatives to the citizens, arising from the consequential lockdown of some cities in Nigeria in order to contain the ravaging COVID-19 pandemic, was being distributed by the officials of government concerned. The Minister in charge of the operation was quoted as saying that records of the distribution of the palliatives were in the custody of the Accountant General of the Federation. The insinuation generated by this incident is that the inferno was master-minded by government officials to conceal the culpability of the said officials in the alleged corrupt practices perpetrated during the distribution of the palliatives.

Assuming that the controversy ends up in court and secondary evidence of record of documents in use during the distribution of the palliatives is tendered before the court, after being tampered with, all that is needed for their admissibility is to tell the court that the original copies got burnt during the inferno in the Accountant General’s office and by that piece of evidence, the tampered documents are admitted in evidence and relied upon to determine the case.

In this piece, an attempt is being made to expose the impropriety and illegality of this practice and state the proper position as provided in the Evidence Act, 2011, Laws of the Federation or “the Act”. It is also intended to undertake a comparative evaluation between what obtains in Nigeria and in other common law country and then propose possible improvements in the Nigerian position that could potentially curtail its rampant abuse in our judicial system.

THE DISCOURSE
The admissibility of a copy of a document, the original copy of which is not available for the Court’s perusal and inspection is provided for under the Evidence Act. Section 87 of the Evidence Act refers to such documents as secondary evidence. The Act provides for about eight circumstances when the Court could admit such documents in evidence. Of all the eight circumstances, only one circumstance is of a peculiar nature and that circumstance is when the original document could not be found anywhere, anymore. For the remaining circumstances, the original copy is located somewhere but could not be brought to Court for one reason or the other. For purposes of clarity, section 89 of the same Evidence Act states as follows: “Secondary evidence may be given of the existence, condition or content 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 original consists 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.”

This discourse is centered on the underlined portion of the foregoing quotation, which clearly depicts the circumstance when the original has become unavailable and irretrievable. This provision has given rise to scenarios in which lawyers try to lay foundation for the admissibility of such documents during hearings. It has become customary for the following exchange to ensue between counsel and witnesses during examination-in-chief: Counsel:“Take a look at the document dated …… Is it an original or photocopy?” Witness: “It is a photocopy” Counsel: “Where is the original?” Witness: “The original got missing while I was relocating to another address.” Counsel: “My Lord, we seek to tender the document as an exhibit in this suit.”

The word “missing” is typically used in substitution for the word “lost”, which is contained in the Act, by witnesses in the circumstance under reference. Are these two words necessarily coterminous within the context of the specific provision of section 89 of Evidence Act? It is the view of this writer that the witness in the circumstance described above has not laid proper foundation for admissibility of the photocopy of the document in the manner prescribed by the Evidence Act; and that the contention that it amounts to technical justice as opposed to substantial justice is not a “fortress” that avails counsel placing reliance on it. Let’s begin to interrogate the reasons why?
WHEN IS A PROPER FOUNDATION LAID FOR ADMISSIBILITY IN THIS CIRCUMSTANCE?

It is submitted that secondary evidence of the document is admissible only when it is established that the original is NOT traceable anywhere at the time of hearing, after a diligent search and that it does not fall into any of the categories enumerated in other subsections of section 89 of the Act. For such a document to be admissible, it must first of all be “lost” and then a “search” would have been conducted. Back to the question: “Is the word “missing” coterminous with the word “lost”? We shall soon find out.

It is trite that the primary rule of interpretation as applicable to statutes and documents is that words and phrases must be given their natural meaning without extrapolations. In Ahman & Anor v. Ayuba & Ors (2008) LPELR – 3659, the Court of Appeal held such words must not be construed in a manner which is contrary their meanings. Do “missing” and “lost” share the same meaning?

“Lost”, which derives from “loss” as an adjective, is defined in Black’s Law Dictionary (Sixth Edition), page 958, as: “1…beyond the possession and custody of its owner and not locatable by diligent search. 2. Missing” It is also defined as being “no longer in your possession or control; unable to be found or recovered” On the other hand, “missing” is defined in the Erudite Online Dictionary as “Not able to be found; Nonexistent” These definitions tend to give the impression that both words could be used interchangeably. Be that as it may, it is contended that the draftsman, instead of the word “missing”, has used the word “lost”, advisedly. The consistent use of the word “lost” even in other jurisdictions, suggests that there is a context and basis for its preference over the word “missing”. From the definitions above, it would appear that it suffices once the court has been informed that the original document is lost or missing, for that would have put the court on notice that the original document is not within the reach of the witness.

But the Act imposes a further burden when it demands that there must be evidence that a search was conducted for the lost or missing document, hence from the provision of the Evidence Act, it is not sufficient to testify that the original document is lost or missing. There must be positive evidence before the Court that a search was conducted, in a bid to locate or find the lost or missing document. Even the definition given above depicts the importance of this component of the evidence. Section 89 (c) of the Evidence Act, 2011, emphatically provides that where the original is said to be lost, there must be evidence before the court that a search was conducted for its location. Therefore, where this aspect of testimony is not available to the Court, it is arguable that, sufficient foundation has not been laid for the admissibility of the document and the document is inadmissible in evidence, whether or not there is opposition to its admissibility by opposing counsel. The Supreme Court has held in Buhari v. INEC & Ors (2008) LPELR-814, p.124 (paras A-B), that where a Court admits the evidence because the opposing counsel did not object to its admissibility, the Court is bound to expunge it at the point of writing its judgment or ruling.

As stated earlier, the Act expects that where the evidence before the Court is to the effect that the original document is lost or missing, there must also be evidence that there were efforts to retrieve it through a search.

It is curious that the Act requires evidence of search for the lost document after the court has been told that it is lost or missing. But that is precisely what the Act demands of the witness in this circumstance. From the definitions of the two words above, it would seem that both counsel and judicial officers presume that once a document is said to be lost or missing, it is implied that a search had been conducted for it without success? Such a presumption, in my view, is neither founded in law nor supportable by the evidence disclosed, and is a practice that should be jettisoned. Requesting courts to admit such secondary documentary evidence in those circumstances amounts to turning the court into a Father Christmas, who goes about giving out unsolicited freebies to random parties without merit; as has become trite, courts are not in the habit of granting applications without supporting evidence or basis in law.

It is common knowledge that a lost property could be found, hence the cliché “lost but found”. Even where there is evidence before the Court that a thorough search was conducted for the lost or missing original document, the outcome of such a search, fruitful or otherwise, should be produced in evidence before the court. Evidence of the outcome of such a search is what confirms whether the original document could be said to be conclusively lost or missing at the time of testifying. Where the evidence stops short of affording the court an opportunity to form an opinion as to whether a search was, at all, conducted and what its outcome was, then it is not conclusive that the original document is lost or missing at the material time, for the purpose of satisfying the provisions of section 89 of the Act.

This provision of the Act should not be allowed to be a veritable tool in the hands of unscrupulous litigants to deny the courts the benefit of reviewing original documents for the purpose of ascribing probative weight and value and dispensing substantial justice.

Another area of concern concerning the application of this provision of the Act is the frequent failure of counsel to incorporate in their pleadings the foundational facts that support the evidence of loss and search and reliance on secondary evidence of an original document. What tends to happen is that parties, through counsel, spring it as a surprise at the point of giving evidence. It is the practice that parties only front-load photocopies of documents intended to be relied upon during trial, in the course of settlement of pleadings. It is advocated that a party who intends to rely on the photocopy of a document during trial, must disclose this position at the stage of settlement of pleadings, stating why the original copy will not be tendered at trial. This way, the opposing counsel has sufficient time to investigate the reasons why the original copy of the document will not be available for inspection during trial.
Obi is a partner at the Alliance Law Firm, Lagos.

There have been several instances when witnesses testify to the court that the original copies of documents got lost or missing in the course of relocation or in other scenarios, when, in fact, such fact was never pleaded anywhere by the party concerned. In such a circumstance, even where there is evidence before the court that a search was conducted for the lost or missing original document, the secondary document ought to remain inadmissible because sufficient foundation still has not been laid. This emphasizes the usefulness of pleading the fact and circumstances that parties intend to rely upon in proof of their cases, since evidence of facts not pleaded is not admissible during trial, and if wrongly admitted should be expunged at the stage of judgment, as held in the case of Aminu & Ors v. Hassan & Ors (2014) LPELR – 22008 (SC) (pp. 47-48, paras F-C).

Some have argued that such issues be left for cross-examination rather than pleadings. But such postulation overlooks the trite principle of law that bars a party from springing any manner of surprise on the opposite party, see Justice Party & Anor v. INEC & Ors LPELR – 7256 (CA), page 5-7, paras F-C. As stated earlier, a party who is embarking on trial has the right to know, in advance, the case that an opponent intends to fashion during hearing. That way, adequate preparation could be made to meet all the material points in issue at trial. This is especially important when viewed against the backdrop of the sharp practice of opposing parties first manipulating original documents with the aid of technology to produce a desired outcome before then photocopying same for use as secondary evidence.

A PEEP INTO INDIA
Section 65 of the Indian Evidence Act, 1872, states: “Secondary evidence may be given of the existence, condition or content of any document in the following cases: (a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to the process of the court, or of any person legally bound to produce it and when after the notice mentioned in section 66, such person does not produce it; (b) When the existence, condition, or content 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) When the original has been destroyed or lost or when the party offering the evidence of its content cannot, for any other reason not arising from his own default or neglect produce it in reasonable time; (d) When the original is of such a nature as not to be easily movable; (e) When the original is a public document within the meaning of section 74; (f)When the original is a document of which certified true copy of is permitted by this Act, or by any other law in force in India, to be given in evidence; (g) When the original consists of numerous accounts or other documents which cannot conveniently be examined in court and the facts to be proved is the general result of the whole collection.”

India and Nigeria are common law countries and members of the Commonwealth, whose legal systems originated from the received English law and this accounts for the remarkable similarities in the provision of both sections of the statutes in both countries. However, in India, there is a third condition to be fulfilled before the document could be admissible. It is noteworthy that these conditions are disjunctive conditions, both in Nigeria and India, as they are used in the alternative. While the requirement of first conducting a search before reliance can be placed on secondary evidence is apparent in the Nigerian legislation, it is not so apparent in Indian. Under the Indian Evidence statute, the condition to wit: “for any other reason not arising from his own default or neglect (to) produce it in reasonable time” is not only clearly independent of the requirement to establish that the primary document has been “lost”, it also imposes the additional burden of the party seeking to rely on secondary evidence to demonstrate that he/she has not in any way been responsible for the failure to bring the original document to court. The onus lies on such witness to prove that, for instance, the loss of the original document during relocation was not due to his negligence. To prove this, the witness, arguably, has to present before the court, some positive steps taken to ensure that the original document was no longer likely to be recovered and has, indeed, been truly lost. It would seem that, such a party should provide evidence that there was no abdication of responsibility to protect and preserve the original document. But where the loss of the original is as a result of circumstances like inferno, then it could be easy to conclude that the witness played no role in the said loss, as he may not have had the opportunity to salvage the original document.

CONCLUSION & WAY FORWARD
The position found in the Indian Evidence Act, appears to be of great attraction to this writer. A situation where all that the Court needs to know is that the original document is lost and that a search was conducted, without more, leaves much to be desired, as it gives room for every secondary document to pass the test of admissibility. It is recommended that beyond the result of the search being disclosed to the court, the court should also be persuaded that the original was lost, not due to the default or mischief of the party tendering the secondary evidence. In absolving the party of any responsibility for loss, the party must be required to demonstrate before court the standard of care and diligence exercised in preserving the original document from loss, damage or diminution. Such that, where a poor or inappropriate level of diligence was found to have been applied in protecting the original document in question, it could lead to the inference that mischief may have been at play in seeking to rely on a secondary copy, the integrity of which is suspect.

For instance, in the scenario narrated above, involving the fire at the Accountant General’s office, the witness would be bound to explain to the court why such documents are not backed up electronically and how operational the office’s business continuity plan/crisis management framework is. Potentially acceptable reasons for not backing-up the document electronically could range from the fact that the transaction took place pre- computer era to the fact that the electronic version had been compromised through phishing or other cybercrimes. This would ordinarily introduce the applicability of the law guiding the admissibility of computer-generated evidence as found in section 84 of the Evidence Act, 2011, which is outside the scope of this article.

Expectedly, the foregoing facts would need to be pleaded in order to grant the opposing party a fair chance of preparing a counter case. In the light of my views above, a potential review of the Evidence Act in Nigeria could read thus: “Secondary evidence may be given of the existence, condition or content 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; (b) The original has been destroyed or lost and in the latter case, all possible search has been made for it without being found, provided the party seeking to rely on the secondary evidence satisfies the court that its loss is not due to any neglect, default or mischief on his part.
Obi is a partner at the Alliance Law Firm, Lagos.