DOCUMENTARY  EVIDENCE.

CONTENTS

1. INTRODUCTION
2. 0 OBJECTIVES
3. 0 MAIN CONTENTS

• Statutory Provision
• Proof of Execution of Documents
• Proof of the Contents of documents
• Extrinsic Evidence of Documents
• Interpretation of written Document
• Computer generated evidence

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignment

7.0       References/Further Readings

            INTRODUCTION

In Part I of Law of Evidence you learnt what a document is and about its different kinds. In this unit, we shall be dealing with documentary evidence. Documentary evidence is  evidence supplied by writing, which must be authenticated before the evidence is  admissible (Blacks Law Dictionary). In this context, writing includes books, maps, plans, drawings, photographs, matters expressed or described upon any substance by means of letters, papers or marks or by more than one of these means intended to be used or which may be used for that purpose of recording matter.

Evidence Act Section 258 (1) extensively interprets the terms: ‘copy of a document’, ‘computer’ and ‘document’ because of their importance in litigation today and Section 84 deals with the admissibility of statements in documents produced by computers. You may find it interesting to reconsider all the case law on admissibility. Essentially, a document is a statement made in a document which is offered to the Court in proof of any fact in issue (Aguda). In this unit, you shall learn how the statutory provisions on documentary evidence have been interpreted and applied, and rules and principles that have now emerged.

OBJECTIVES

This unit attempts the definition of documentary evidence. It will also examine the examples of circumstances when documentary evidence would or would not be excluded in law of Evidence.

MAIN CONTENT

• Statutory Provision

It is important that you understand the principles and rules relating to documentary evidence. To start with, you need a brief survey of the provisions of the Evidence Act  relating to the subject:

Read section 85 – 92 to refresh your memory on the definition, classification and admissibility of documentary evidence.

Then Read section 83 - 84 relating to admissibility of documentary evidence.

The differences between Public and Private Documents are explained in section 102 – 106, while the circumstances of exclusion of oral documentary evidence are contained in sections 128 – 130.

You may gain an added advantage by reading in passing Sections 107 – 120 which deal with the contents and validity of Affidavit.

• Proof of Execution of Documents – Section 93-98

Any document which is tendered as a proof of its content is a hearsay evidence. It is inadmissible in evidence unless it falls within  one  of  the  exceptions,  e.g.  dying declaration, a confession, or if it is a public document.   On the other hand, it is not hearsay  if the same document were tendered to prove its existence or the fact that it was made

Some documents like the Acts of the National or State Assembly are judicially noticed and are admissible without any form of authentication. There are other documents which may necessarily be authenticated or classified, stamped, sealed or signed by designated public officials as the case may be.

The validity of a document determines its admissibility or the secondary evidence of the document.

• Ancient documents

Some reference had been made to presumptions as to hand-writing on what needs to be added is that if a document is proved or purported to be 20 years old and is produced from the proper custody and otherwise free from suspicions, the court will presume the document’s validity but not its veracity. The Court presumes that:

• The signature on the document is genuine
• The handwriting is that of the person who is supposed to have written it
• The document was duly executed. These prescriptions arising by reason of the document are rebuttable

In this context, proper custody implies the deposit of the document in a place, and under the care of persons, whose and with whom it might naturally and reasonable be expected to be found, if authentic, even though those may be some other custody more strictly proper. Generally, if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or, the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting (Section (93).

• Proof of Signature and handwriting and Electronic Signature

Evidence that a document exists having the same name, address, business or occupation as the maker of a document purports to have, is admissible to show that such document was written or signed by that person.

Evidence that a document exists to which the document, the making of what is in issue purports to be a reply, together with evidence of the making and delivery to a person of such earlier document, is admissible to show the identity of the maker of the disputed document with the person to whom the earlier document was delivered (Evidence Act 2011, Section 93 and 94)

• Handwriting

Evidence of handwriting may be required if a document other than an ancient document which a person is alleged to have signed or written. The evidence of hand writing may be given in the following ways:

• By comparing the disputed signature or handwriting with a sample which is either admitted or proved to have been written by the person named (i.e. the writer or signatory).
• By calling the alleged writer or signatory as a witness and inviting him to write any words or figures so that the Court can compare with the disputed document
• By calling the alleged writer and signatory or person named as  a  witness  to  identify his or her own signature or writing
• By calling any person who saw the writer or signatory write (where he or she is not available) to give a direct evidence of that fact
• By calling a person who is familiar with the writing or who regularly receives or did receive documents signed or written by the signatory or writer of the disputed document to be called to make a comparison
• By the opinion of hand writing expert witness

The Evidence Act 2011 introduced for the first time the element electronic signature. In Section 93(2) (1) (3), it states:

• Where a  rule   of   evidence   requires   a   signature,   or   provided   for certain consequences if a document is not signed; an electronic signature satisfies that rule of law or avoids those consequences
• An electronic signature may be proved in any manner, including by showing that a procedure existed by which it is necessary for a person, in order to proceed further with a transaction to have executed a symbol or security procedure for the purpose of verifying that an electronic record is that of the person
• ATTESTATION

Some documents require attestation. Example is a Will or other testamentary disposition or other document required by law to be attested.

To prove due attestation, you need to call the attesting witnesses if they are alive or resort to proof of handwriting if the attesting witnesses are dead.

Ancient document is presumed to be valid. Accordingly the Court presumes that the signature is genuine; that the handwriting is that of the writer or signature and that the document is duly executed. In other words, these facts or matters need no proof in Court; they are presumed to exist.

Recitals, statements and descriptions of facts, matters and parties contained in deeds, instruments, statutes, and statutory declarations of at least 20 years old are presumed to be correct.

Where the holder of a bill of exchange has a lien on it, by contract or in law, he is deemed to be holder for value to the extent of his lien.

Where value has at any time been given for a bill of exchange, the holder is prima facie deemed or presumed to be holder for value.

Alterations to deeds are presumed to have been made before or at the time of execution. The effect of material alterations made after execution of a deed without concurrence of the party to be charged is to render the whole deed void.

Alterations to Wills are presumed to have been made after the execution. Alterations to a Will made after executions are of no effect unless they amount to partial revocations.

A document which is required by law to be stamped is presumed to have been duly stamped if it is lost, or not provided upon notice.

These presumptions are examples only. They are not exhaustible.

• Proof of the Contents of documents
• See sections 85 – 89 Evidence Act, 2011.

The contents of a document may be proved by primary or secondary evidence, depending  on the requirement of the law and the nature of the document – whether it is public or private document. The contents of any document must be proved by primary evidence subject to certain exceptions.

Primary evidence is the production of the original document for the inspection of the Court. Where a document is executed in several parts, each part is primary evidence. Similarly, if in counterparts, each counterpart, or a copy of identical documents produced in a uniform process by means of printing, lithography, photograph, like the copy of any Newspaper of a particular date is original. Each of these documents is a primary evidence of the contents of  a pertinent edition.

The original document sought to be produced must be identified on oath being what it purports to be, unless it has already been admitted or it is a public document admissible on production.

If the original document is in the hands of an opponent or a stranger, the following notices to produce must first be served:

• Notice to produce. –Here production is optional, commonly used in Criminal proceedings
• Subpoena duces tecum -Here, production is compulsory

In the case of banker’s books, the judge’s prior order is necessary

An Admission (oral, written or by conduct) of the contents of a document by a party is a primary evidence against him or her, who admits. Similarly a copy of document acknowledged as correct by an opposite party is regarded as an original document.

• Copies of an Original Document

Sometimes, a copy of an original document made under a public authority is admissible as primary evidence. For example, Probate of a Will is a primary evidence of the words of the Will. A document which is sealed and certified by the Director  of National Archives  is treated as primary evidence (Public Archives Act. Section 7 and Evidence Act section 88); so also is a certified copy of entry in the Register of Marriage (Marriage Act).

• Secondary Evidence:

See section 87, Evidence Act, 2011.

Secondary evidence of the contents of a document is any admissible evidence other than the primary evidence. The general rule is that the Secondary evidence of the contents of a document can never be admitted unless  the  original  document  itself  would  be  admissible in evidence. It is of utmost importance that:

First, you lay a foundation for admissibility of the original document, giving account of the original document e.g. that it is a public or judicial document. Next is to lay the foundation for the admissibility of the secondary evidence of those documents.

• Forms of Secondary Evidence

Secondary evidence may take any form; but where statute prescribes a particular type of secondary evidence, no substitute may be permissible admissible.

Examples of these forms of Secondary evidence are:

1. Office copies of judicial documents bearing official seal, and made by an officer of the Court having custody of the original document
2. Examined Copies of documents produced by a writer  who,  has compared  them with the originals or by oral evidence by a witness who has read the original document.
3. Photostat or certified copy of the original copy

Oral testimony of private documents may be given by the testimony of the conduct of a person, acting in pursuance of the assumed terms of a document.

A public or judicial document and quasi-public document may be proved by oral or secondary evidence, depending on convenience. They may be proved  in  the  following ways:

• By an examined copy
• Sealed and certified copy of records (public record or letters patent)
• Certificates or certified copies of public documents, proceedings of corporations or entries in Register
• As statute may prescribe
• A copy of extracts of books, documents of public
  • Private Documents

Private documents must be proved by primary evidence, except in those special circumstances in which the law allows secondary evidence of their contents.

• Cases in Which Secondary Evidence of Private documents is admissible. See Section 89 Evidence Act,

A secondary evidence of the document may be admitted in the following cases:

• Where the original document is lost or destroyed
• undue delay or expense would be involved in providing the original
• Where the original is in the hands of a stranger
• Where the original is in the hand of an opponent
• Where it is inconvenient or physically impossible to provide the original

See for other cases, sub sections (a)-(h)

• Bankers Book

An entry in the ordinary books of the Bank may  be  proved  by secondary  evidence  provided that:

• The book in which the entry is made is at the time one of the ordinary books of the Bank, irrespective of whether it is used daily or occasionally
• The entry is made in the usual and ordinary course of businesses
• The book is in the custody and control of the Bank, which proof may be given orally or by affidavit by a partner or officer of the bank
• The copy has been examined with the original entry and found to be correct, (not necessarily verbatim or precise language) but in substance. A Ledger card is not admissible (YESUFU V ACB (1976); FADAH ALLAH v AREWA TEXILE LTD (1997).
  • Secondary evidence of previous conviction. There are several ways of proving a conviction. Examples of such ways are as follows:

1. By a certified copy of the record
2. By a certificate signed by a clerk or deputy clerk of the Court of trial
3. By a copy of the summary conviction signed by a Justice of the Peace
4. By a certified extract from the Court Register
5. By a certificate signed by or on behalf of the Inspector General of Police giving particulars of the conviction, and certifying that the finger print exhibited to the certificate are those of the person convicted and
6. A certificate signed by the person in authority certifying to the same effect

A document which is admissible as evidence of conviction is admissible in any civil proceedings to prove the facts on which the conviction is  based. The information, complaint, indictment in the charge – sheet may be used for this purpose

• In sum, secondary evidence of the contents of the following documents may be given provided the originals themselves would be admissible:
• Public or judicial documents or a private one required to be registered or enrolled
• Document that has been lost or destroyed provided that the existence and search (if lost) has first been proved
• Document in the possession of a stranger or adversary who requires producing document of which production is physically impossible or highly
• In interlocutory proceedings
• EXTRINSIC EVIDENCE OF DOCUMENTS

Extrinsic evidence means evidence relating to a contract but not appearing on the face of the contract. It comes from other sources such as statements between the parties or the circumstances surrounding the agreement. It is extraneous evidence.

The general rule is that extrinsic evidence is inadmissible to add to, subtract from, vary, alter or contradict a written document that is not ambiguous.

A written document is deemed fit to be a complete and conclusive record of  the transaction. No evidence therefore may be given to prove the terms of the transaction, except the document itself or where the laws direct otherwise.

Suppose A advertises his parcel of land for sale. The land comprises Black acre, Green acre and White acre. A and B enter into an agreement in writing for the sale of white acre and Green acre in Garki Abuja, B cannot be heard later to complain that there was complementary verbal agreement  that  Black  acre  was  included  in  the  original agreement that is in writing.

Where a judgment, contract, disposition  of property  or other  transaction  is in writing,  such document or series of documents represents what was intended. An extraneous oral evidence to prove the contents is inadmissible.

Exceptions:

Extrinsic Evidence of a written instrument or documents may be  admissible  in  the  following cases:

1. To impeach the document for want or failure of consideration, incapacity of the parties, illegality, mistake, fraud, and  innocent  misrepresentation, undue influences, forgery etc. The ultimate purpose is to show that there is no valid transaction or any such matter as would entitle a party to the document to a judgment or order relating to it
2. To show that a deed appearing to be a sale is, in fact, a mortgage

• To show that the written record has been wrongly dated

1. To show that the writing was not meant to be the record of the transaction, or the complete record of it
2. To prove a condition precedent to any delegation under a contact or disposition of property
3. To add supplemental or collateral terms contained in separate agreement

• To incorporate local or trade custom
• To show a subsequent oral agreement, varying or rescinding the written instrument.

1. To connect two or more written documents, which refer to each other in relation to the transaction
2. To prove a legal relation created by a document when only the existence of such relationship is involved and not the terms of the document
3. To show that a document was executed with an intent, which is contrary to the presumption raised  by the  equitable  doctrine of                                        See Re-Tussand (1878),

• To prove a contract where proof of part performances is accepted in place of a statutory memorandum
• To translate    the    document    (e.g.   a   document    in    foreign    language, signs, abbreviations, nicknames, illegible characters).
• To explain the terms now obsolete but used in an ancient document

1. To explain scientific or technical terms

• To explain common words (e.g. where parties use words in a particular sense with secondary meaning.
• To explain where the words used have a special meaning (e.g. trade usages or not being contradictory to the document
• To show the circumstances of the parties or one of them
• To identify parties ,persons and things

1. To explain ambiguity – latent, patent or equivocation

• Rescission or variation of a written instrument:

An obligation under seal can only be varied or rescinded by a deed. The doctrine of equity holds a contrary view. See the case of Berry v Berry (1929). Since equity prevails, a contract in writing or evidence in writing may be varied by a later parol agreement.

However, if the law declares that “writing or a memorandum in writing” is a condition precedent to an agreement or contract, it can only be varied by a subsequent contact, which is itself in writing. For example, the Statute of Frauds states that a contract concerning land must be evidenced in writing. If then P agrees in writing to sell an acre of land to D, any subsequent oral contract between P and D would not suffice to confer on D any good title to any of the plots as such oral agreement would be offensive to the Statute and therefore inadmissible.

But then, specific performance of the contract as varied orally is permissible in three situations, namely:

• Where the absence of writing, is not specially pleaded
• When, through the defendants fraud, no memorandum was signed
• When the plaintiff proves acts of part performance or  verbal  variation  which unequivocally refers to it

In regard to rescission of a written instrument, a prior written contract can always be rescinded expressly by a subsequent oral agreement. But notice: that the subsequent contract itself cannot be sued upon by reason of want of writing or written evidence.

In an old case of Morris v Baron & Co (1918), an action for $800 was settled by oral agreement which both rescinded the original written contract and contained a new arrangement. At the time, the Sale of Goods Act 1893 had provided that a contract for the sale of goods of $10 and upwards had to be evidenced in writing. The House of Lords held that oral agreement was valid to rescind the  former  written  agreement,  but  unenforceable as to the new arrangements made.

• Extrinsic evidence inadmissible. Extrinsic evidence will not be admissible in the following:

 

• Of a party’s direct declaration of intention
• Where there is no ambiguity in the language or merely grammatical ambiguity 
• Where the language is so vague or imperfect that no extrinsic evidence would be mutually equivalent to making a new document
• Where the interpretation sought to be given would conflict with some rule of law or construction
  • Interpretation of Written Document

Only a summary of this topic is required here. Words used are taken in their “ordinary popular meaning” and as modified to produce sense and consistency, except where it is apparent that the words have been used in some other sense.

When extrinsic evidence is not admissible

The Court is concerned with the document itself. What the parties have expressly stated in the document is what they really intended. Hence, extrinsic evidence is not admissible if the words of a document are clear and unambiguous. A party cannot be heard therefore, to say that although the parties have expressed certain things in words, they really intended something different.

However, the Court may depart from the words used and receive extrinsic evidence in:

• Expressions which are contradictory, or
• Single expression, which is against the general term or of the document. When this situation arises, what does the Court do?
• It considers the document as a whole. It construes the meaning of terms from what has gone before and what follows (i.e. ex antecedentibus et consequentibus).

Remember that the court is always anxious to uphold a document, if possible, rather than that it should fail for uncertainty (i.e ut res magis valeat quam pereat: let it rather be valid than perish). Hence, whatever the intention of the parties which the Court so construes prevails over the words so expressed.

For that reason also, where a deed may be read in two ways – one reading of which makes its object unlawful  and the  other  lawful,  the latter  is to be  given  effect. An example is  the cypress doctrine which applies to charitable trusts.

Extrinsic evidence in aid of interpretation may also be admissible to prove the following:

• Knowledge and circumstances of this writer – his or her identify
• The extent of the objects referred to in a document;
• The particular sense in which certain words are used
• Whether those words were not used in their primary or ordinary sense; the surrounding circumstances in which used – trade and habits of speech
• Situation: falsa demonstration  non nocet; i.e where words (are used correctly in  one part and incorrectly in another part, or (apply partly to one subject matter and partly to another, or (have both ordinary and local or particular meaning, extrinsic evidence is admissible to show that which was intended
• To resolve ambiguity or an equivocation. Equivocation refers to a situation where words used fit two persons or things, or where it fits one person accurately and another popularly or both equally and subject to common inaccuracy
• To explain technical, local or foreign terms by references  to  dictionaries  and  expert evidence

Any ambiguity which does not answer the above description may be incurably bad for uncertainty. See the case of The Union Bank of Nigeria Ltd v Professor Alvert Ojo Ozigi (1994), where Adio JSC expressed the following guiding principles:

1. The general rule is that where the parties have embodied the terms of their contract on a written document, extrinsic evidence  is  not  admissible  to  add to, vary, subtract from or contradict the terms of  the  written  See also section 131, Evidence Act, 2011; Olaoye v Balogun (1990), Eke v Odolofin (1961), Macaulay v Nal Merchant  Bank  (1990), Colonial Development Board v Kassisi (1955), Molade v Molade (1958).
2. The operation of the parol evidence rule is not limited to oral evidence. It extends to extrinsic evidence in writing, such as drafts of agreement, preliminary agreements and letters relating to previous negotiations
3. Extrinsic evidence is not admissible as to what passed between the parties before the execution of a written agreement or during its preparation. For example, the court may refuse a document as inadmissible because it constitutes extrinsic evidence intended to be used to contradict a mortgage deed.
4. Where a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning
5. Where the words of any instrument are free from ambiguity in themselves and where the circumstances of the case have not created any doubt or difficulty as to the proper  application  of  the  words  to  claimants  under  the instrument  or  the subject matter to which the instrument relates, such an instrument is, as a general rule, always to be construed according to the strict, plain and common meaning of the words themselves. It is wrong to import into Mortgage deeds extraneous matters, such as the requirement that the party should obtain the prior consent or give prior notice of increase in the rate of interests on the loan to the other

This doctrine has been applied and followed by the Apex Court in Nigeria.

• Refreshing Memory from a Document

Subject to certain conditions, a witness may refresh his memory from a written document while giving evidence. This type of evidence is oral, not documentary.

The written record must have been made:

1. By the witness or on his or her direction from his treaties e.g expert witness
2. Upon matters within his own knowledge

• Within such a time after the transaction as to still be fresh in his memory or read through while the matter was still fresh in case of records made at his direction.

1. Before any controversy in the matter arose

A witness, with the permission of Court, may validly refresh his memory from the  document. The practice has the merit of:

• The writing reviving the witness’s recollection of facts;
• Creating in his mind, a belief that when the writing was made, he knew it to be correct
• The witness being satisfied that it would not have been made if it was not true;

Examples of documents, which courts have permitted to be used to  refresh  oneself  include:

• Entries made by a tradesman in the book of orders actually made
• Entries in a diary
• Tape recorder being replayed in court
• CONCLUSION

Any document which is tendered as a proof of its contents is hearsay evidence and it is as a general rule inadmissible. However extrinsic evidence may be admitted to:

1. Vary, or contradict a public document, not being a judicial record e.g the Register of slips
2. Vary, or contradict a private document – informal or inter alois e.g a receipt
3. Modify or rescind at any time before breach and by oral agreement any written transactions which statute requires to be in writing show that the document or transaction is invalid

Extrinsic evidence may be adduced to supplement, but not to contradict the terms of a private formal document for the purpose of proving terms that are omitted, proving collateral agreement or warranty or proving that the contract was subject to a custom (not inconsistent with its terms). Where  a statutory  Memorandum  is required,  any  modification or rescission must be written. If the purpose is to rescind the contract as a whole, oral evidence suffices.

Extrinsic evidence is receivable to show that the document in question is not a valid record of a transaction (i.e. A forgery) or that the transaction as recorded is itself invalid, want of consideration, or by reason of fraud, mistake or illegality. On the other hand, extrinsic evidence may be admissible to prove the true nature of a transaction and relation of the parties such as evidence showing that a conveyance is in fact a mortgage or that an agency relationship exists between parties.

SUMMARY

The Evidence Act defines document in section 258  and  provides  for  documentary  evidence in parts v and vi and more particularly in section 85 -107, and 108-130. You learnt of circumstances when documentary evidence may or may not be admitted and the conditions precedent to  admissibility  where  applicable.  The contents  of  a  document  may be proved by primary or  secondary  evidence, depending on the requirement of the  law and the nature of document (section 85 - 89, Evidence Act). As a general rule, extrinsic evidence is inadmissible. You should be able to enumerate exceptions to the rule. The Unit ended with a brief resume of how to interpret a document.

TUTOR MARKED ASSIGNMENT

• In what circumstances is extrinsic evidence of a document admissible?
• Respond to the argument that extrinsic evidence can never be used to contradict or vary the terms of a document
• What is a latent ambiguity? How is it different from a patent ambiguity?
• Discuss the rules relating to the admissibility of extrinsic evidence in and of the interpretation of documents

REFERENCES/RURTHER READINGS

1. The Evidence Act, 2011
2. F, (1999) Modern Nigerian Law of Evidence. University of Lagos Press, Lagos.
3. Aguda T. (2007) the Law of Evidence, Spectrum Law Series, Ibadan
4. Afe, B . (2001) Law and Practice of Evidence in Nigeria Intec Printers, Ibadan
5. Glanville Williams: The Criminal Law Review, Sweet and Maxwell, London. March 1973, P 139 – 152. The New Proposals in Relation to Double