Documentary Evidence: Primary, Secondary and the Rules of Tendering

When a defendant in a land case claims that they have a deed of conveyance showing they legitimately purchased the disputed land in 1979, the court will want to see that deed. Not a description of it. Not a witness saying “I know there is a deed.” The deed itself. This is the foundational principle behind documentary evidence: the document speaks for itself, and the law has developed precise rules about how documents must be produced, who must produce them, and what happens when the original is not available.

Documentary evidence is at the centre of nearly every Nigerian court proceeding. No commercial dispute, criminal prosecution, land case, or employment matter proceeds without documents being tendered. Understanding how documents are admitted, when copies are acceptable, and when the court will exclude a document because it was not properly tendered is therefore not an academic exercise. It is a core litigation skill.

This article explains the definition of a document, the conditions for admissibility of documentary evidence, the distinction between primary and secondary evidence, when secondary evidence is admissible, and how the exclusionary rule on oral evidence interacts with documentary proof.

What is a Document?

Section 258(1) of the Evidence Act 2011 provides one of the broadest definitions of “document” in Nigerian law. A document includes books, maps, plans, graphs, drawings, photographs, and any matter expressed or described upon any substance by means of letters, figures, or marks or by more than one of these means intended to be used for the purpose of recording that matter.

The definition also includes, under section 258(1)(d), any disc, tape, sound track, or other device in which sounds or other data, not being visual images, are embodied, and any film, negative, tape, or other device in which one or more visual images are embodied.

This wide definition means that a document for purposes of the Evidence Act 2011 is not limited to paper and ink. Photographs, audio recordings, video recordings, computer printouts, and electronic files all fall within the definition. The 2011 Act deliberately widened the definition to address the evidential challenges of modern technology.

An important distinction applies to how documents are treated evidentially. Where a document is produced for mere identification, it is treated as real evidence under section 127. It is only when the contents of a document are relied upon to prove or disprove a fact in issue that it qualifies as documentary evidence. In PD Hallmark Contractors Nig Ltd v Gomwalk,¹ the court confirmed this distinction. The practical consequence is that a document produced only so that a witness can say “this is the one I saw” is treated differently from a document produced to prove what it says.

However, a document falling within section 258(1) does not automatically fall under a single admissibility regime. Conventional documents are governed by sections 83 to 90. Documents produced by a computer are subject to the separate and more stringent conditions in section 84. This distinction matters enormously in practice and is examined below.

Why Documentary Evidence Matters

Section 128 of the Evidence Act 2011 contains a principle sometimes called the best evidence rule or the documentary evidence exclusionary rule. When a matter has been reduced to writing and that document is admitted in evidence, the document speaks for itself. Generally, no oral evidence can prove the terms of, contradict, alter, add to, or vary the contents of a document. Only documentary evidence can vary an existing document.

In Union Bank of Nigeria v Ozigi,² the Supreme Court held that when a document has been tendered and admitted, it speaks for itself and no oral evidence is needed to add to or contradict it. In Lagos Timber Co Ltd v Titk Combe,³ the same principle was applied.

The policy behind this is reliability. Documents cannot lie in the way that witnesses sometimes do. They record exactly what was agreed or observed at the time. They are therefore regarded as the best evidence of their own contents.

Section 128(1)(a) to (e) provide exceptions where oral evidence may be admitted even alongside a document: to explain ambiguity, to show that the document is invalid, to show that the document does not represent the full agreement of the parties, and in other specific situations.

Conditions for Admissibility of Documentary Evidence: Section 83

Section 83 of the Evidence Act 2011 sets out the conditions for the admissibility of a statement contained in a document. These conditions apply to both civil and criminal proceedings, and govern conventional documents. Documents produced by computers are subject to the additional conditions in section 84, addressed separately below.

The proceeding must be civil or criminal. Section 83 applies to judicial proceedings. In Unity Bank PLC v Raybam Eng Ltd⁴ and John v The State,⁵ the courts confirmed this.

Direct oral evidence of the fact must be admissible. If the fact would not be provable by oral evidence, a document proving the same fact is generally also inadmissible. The document does not expand the range of provable facts; it is simply a different mode of proving facts that oral evidence could also prove.

The maker must have personal knowledge. Section 83(4) defines the maker of a document as one who writes the statement in the document or material part of it with their own hand; one who made or produced the document with their own hand; one who signs a statement in the document; one who initiates the statement; or one who acknowledges or recognises in writing that they are responsible for its accuracy.

In Ashakacem PLC v AM Investment Ltd⁶ and Sunday v FRN,⁷ the courts applied this definition. The maker must have personal knowledge of the contents, or must have been supplied with the information by someone who had personal knowledge. Where the maker neither had personal knowledge nor was supplied with it by someone who did, the document is inadmissible.

The document must form part of a continuous record. Section 83 requires that the document be part of a continuous record. A continuous record is one that contains similar documents in a particular sequence recorded as a matter of routine. Minutes of meetings, bank records, hospital records, and ledgers are classic examples. In H v Schering Chemical Ltd⁸ and UNTHM Board v Nnoli,⁹ the courts discussed what constitutes a continuous record.

The maker must be called as a witness. Under section 83(b), the maker of the statement in the document must be called as a witness, subject to exceptions.

The maker must not be interested in the proceedings. Under section 83(3), the document is inadmissible if the maker is a person who is interested in the proceedings that are anticipated or pending. In Ijiya v State¹⁰ and Are v Ipaye,¹¹ the courts applied this restriction.

Section 83(2): Exceptions

Section 83(2) gives the court discretion to permit admission of a statement in a document even where the maker is available but not called as a witness, if the court is satisfied that calling the maker would cause undue delay or expense. The example given in the materials is where the maker is abroad and their evidence would be brief.

The court may also order that the original need not be produced but a copy or certified true copy (CTC) may be used, provided there is evidence that the original still exists.

Computer-Generated Evidence: Section 84

Because the section 258(1) definition of “document” encompasses electronic records, the Evidence Act 2011 devotes a separate provision to them. Section 84 prescribes the conditions for admissibility of statements contained in documents produced by computers. These conditions are in addition to, and in some respects more demanding than, those in section 83.

Section 84(2) sets out four conditions that must be satisfied:

The document was produced by the computer over a period during which the computer was regularly used in the activities in question. The relevant period must be established; sporadic or incidental use does not satisfy this condition.

Over the relevant period, information of the kind contained in the document or of the kind from which the information so contained is derived was regularly supplied to the computer in the ordinary course of those activities.

Throughout the relevant period, the computer was operating properly, or if it was not, any malfunction did not affect the production of the document or the accuracy of its contents.

The information contained in the document derives from information supplied to the computer in the ordinary course of the activities in question.

Section 84(4) additionally requires that a certificate identifying the document, describing the manner of its production, and giving particulars of the computer and its operation be signed by a person in a responsible position in relation to that computer. The certificate must be produced alongside the document.

The Supreme Court in Kubor v Dickson¹² held that a party seeking to tender a computer-generated document must do more than simply tender it from the bar. Evidence establishing the section 84(2) conditions must be adduced. In Sylva v Dickson,¹³ however, the Supreme Court held, following the English position in R v Shepherd, that the section 84(2) conditions may be established either by the certificate under section 84(4) or by oral evidence. Both routes are available; neither is exclusive.

The practical significance of section 84 in modern litigation is considerable. Bank statements of account, printouts from computer systems, electronic transaction records, and email communications are all computer-generated documents and must satisfy the section 84 conditions before admission. In UBN Plc v Agbontaen, the Court of Appeal held that statements of account are computer-generated evidence and that failure to satisfy the section 84 conditions renders them inadmissible. Counsel who tenders a bank statement or electronic record without meeting the section 84 requirements risks having that evidence excluded or expunged on appeal.

One analytical debate worth noting is whether section 84 applies to all computer-generated documents or only to those that would otherwise be excluded as hearsay. The better view is that section 84 is a complete regime for computer-produced statements and applies regardless of whether the document would face a separate hearsay objection. The question of whether a simpler document generated by a computer (such as a printout of static data not involving hearsay) requires full section 84 compliance remains contested in Nigerian courts and deserves continued attention as the case law develops.

Public and Private Documents: An Important Distinction

Before addressing primary and secondary evidence, a foundational distinction must be understood: the difference between public and private documents.

Section 102 of the Evidence Act 2011 defines public documents to include documents forming the official acts or records of official bodies, public officers acting in their official capacity, and records of courts. Private documents are all other documents.

This distinction governs what mode of secondary evidence is available. A certified true copy (CTC) of a public document is admissible as secondary evidence. For private documents, the position is different: section 90 specifies what mode of secondary evidence is applicable in each of the section 89 circumstances, and for private documents that are lost or in the possession of an adverse party, the available secondary evidence is more limited than a simple CTC.

The failure to understand this distinction produces errors in practice. An uncertified photocopy of a public document is not a CTC and is not admissible even as secondary evidence of a public document. In Minister of Lands Western Nigeria v Dr Azikiwe, an uncertified photocopy of a public document was tendered and admitted without objection. The Supreme Court on appeal still held it inadmissible. This case illustrates a point examined further below: some documents are inherently inadmissible, and the failure to object at trial does not cure that defect.

Primary Evidence: Section 86

Section 88 of the Evidence Act 2011 states the general rule: documents shall be proved by primary evidence. Primary evidence is the starting point. Secondary evidence is the exception.

Section 86 defines primary evidence as the document itself produced for the inspection of the court. The original copy of the document is primary evidence.

Three additional rules expand the definition of primary evidence:

Where a document has been executed in several parts, each part is primary evidence of the document. In Omoboriowo v Ajasin¹⁴ and Torti v Ukpabi,¹⁵ the courts applied this rule.

Where a document has been executed in counterpart by different parties, each counterpart is primary evidence as against the parties who executed it. In Nwobodo v Onoh,¹⁶ the Supreme Court applied this.

Where a number of documents have all been made by one uniform process, such as printing, lithography, photography, or computer, each document is primary evidence of the contents of the rest. However, where they are all copies of a common original, they are not primary evidence of the original.

Secondary Evidence: Section 87

Secondary evidence is evidence of the contents of a document other than the document itself. It is sometimes called second best evidence. Under section 87 of the Evidence Act 2011, secondary evidence includes:

Certified copies of the document given under the provisions of the Act.

Copies made from the original by mechanical or electronic processes that themselves ensure the accuracy of the copy, and copies compared with such copies.

Copies made from or compared with the original.

Counterparts of documents as against the parties who did not execute them.

Oral accounts of the contents of a document given by a person who has themselves seen it.

Unlike primary evidence, secondary evidence is not automatically admissible. Section 89 prescribes the circumstances in which secondary evidence will be admissible, and section 90 specifies the type of secondary evidence applicable in each circumstance.

When Secondary Evidence is Admissible: Section 89

Section 89 lists the circumstances that permit secondary evidence of the contents of a document.

Original in the possession of an adverse party: Section 89(a). Where the original document is in the possession of an adverse party who refuses to produce it after proper notice, secondary evidence may be given of its contents.

Contents admitted in writing: Section 89(b). Where the adverse party has admitted the contents of the original document in writing, secondary evidence is admissible. In Sodipo v Mokolu,¹⁷ the court applied this provision.

Original lost or destroyed: Section 89(c). Where the original document is lost or destroyed, secondary evidence is admissible. The party relying on secondary evidence must prove that the original existed and was lost or destroyed. They cannot simply tender a copy without accounting for the original.

Original not easily movable: Section 89(d). Where the document is inscribed on a wall, a gate, or any other immovable surface, secondary evidence of its contents may be given.

Public documents: Sections 89(e) and (f). Certified copies of public documents are admissible as secondary evidence under sections 89(e) and (f), read with the definition of public documents in section 102. In Magaji v Nigerian Army¹⁸ and Alataha v Asin,¹⁹ the courts applied this provision.

Numerous accounts: Section 89(g). Where the original consists of numerous accounts or documents that cannot conveniently be examined in court, the court may allow a summary or copy.

Banker’s books: Section 89(h). Entries in a banker’s book are admissible as secondary evidence of the matters recorded. In Oguma v International Bank for West Africa²⁰ and FRN v Fani-Kayode,²¹ the courts applied the banker’s books provision.

Tendering Documents in Court: Procedure

Documents must be formally tendered in evidence through a witness. A document does not simply find its way before the court. A witness must identify it and formally offer it for admission.

The proper time to object to the admissibility of a document is at the time it is being tendered, not before and not after. In Ashakacem PLC v AM Investment Ltd²² and Orji v FRN,²³ the Supreme Court held that objection to a document must be raised at trial, at the moment of tendering. In Anagbado v Faruk,²⁴ the court affirmed this principle.

However, the failure-to-object rule is not absolute. This is a point that is routinely overstated. Section 251 of the Evidence Act 2011 provides that wrongful admission shall not of itself be a ground for reversal on appeal where the appellate court is satisfied that the wrongfully admitted evidence cannot reasonably be held to have affected the decision. But this provision deals with curable error. It does not apply where a document is inherently inadmissible, that is, where its admission was not merely irregular but was in fundamental violation of a mandatory admissibility requirement.

The distinction matters. Where a party fails to object to an irregularity (such as the maker not being called), the error may be treated as waived and section 251 limits its effect on appeal. But where a document is inadmissible as a matter of law, such as an uncertified photocopy tendered in place of a certified true copy of a public document, the failure to object at trial does not cure the defect. In Minister of Lands Western Nigeria v Dr Azikiwe, the Supreme Court expunged an uncertified photocopy of a public document on appeal even though no objection had been raised at trial. The document was inadmissible as a matter of law, and no conduct of the parties could make it otherwise.

The practical lesson is that counsel must understand the difference between: (a) documents that are inadmissible because of a procedural defect that can be waived, and (b) documents that are inadmissible as a matter of substantive law regardless of objection. The former can be lost by failing to object; the latter cannot be validated by silence.

Documentary evidence does not stand alone. It requires oral evidence to lay the foundation for its admissibility and to add weight to it at trial. In AG Oyo State v Fairlakes Hotel Ltd²⁵ and Abi v CBN,²⁶ the courts held that a document admitted in evidence must be accompanied by oral evidence explaining it and giving it context.

The Exclusionary Rule on Oral Evidence: Section 128

Section 128(1) states the parol evidence rule: no oral evidence may prove the terms of, or contradict, alter, add to, or vary the contents of a document. Only another document can modify a document.

The exceptions in section 128(1)(a) to (e) include: evidence of matters that would show the document is invalid (such as fraud or duress); evidence to show there was a collateral oral agreement on a matter not covered by the document; and evidence to show what the parties understood by particular terms.

Section 128(2) provides further cases where oral evidence is not excluded by documentary evidence. These include oral evidence of custom, evidence of circumstances giving rise to a legal relationship, and oral evidence explaining the meaning of expressions used in a particular locality.

A Quick Reference Table

Key Cases

Union Bank of Nigeria v Ozigi (1994) 3 SCNJ 55 The Supreme Court held that when a document is admitted in evidence, it speaks for itself and no oral evidence may add to or contradict it.

Ashakacem PLC v AM Investment Ltd (2019) 2 SC (Pt. IV) The Supreme Court held that objection to a document must be raised at the time of tendering, not at the appellate stage.

PD Hallmark Contractors Nig Ltd v Gomwalk (2015) LPELR-24462(CA) The court confirmed the distinction between real evidence (document for identification only) and documentary evidence (document tendered for its contents).

Sunday v FRN (2019) 4 NWLR (Pt. 1662) 211 SC The Supreme Court defined and applied the section 83(4) definition of the maker of a document.

Anagbado v Faruk (2019) 1 NWLR (Pt. 1653) 292 SC The court held that a party who fails to object to the admission of a document at trial generally cannot raise admissibility on appeal.

Minister of Lands Western Nigeria v Dr Azikiwe An uncertified photocopy of a public document was admitted at trial without objection. The Supreme Court on appeal held it inadmissible and expunged it. The failure to object did not cure inherent inadmissibility.

Kubor v Dickson (2012) 6 NWLR (Pt. 1296) 314 SC The Supreme Court held that a party tendering a computer-generated document must adduce evidence establishing the section 84(2) conditions. Simply tendering from the bar is insufficient.

Sylva v Dickson The Supreme Court, following the English position in R v Shepherd, held that the section 84(2) conditions may be established either by the certificate required under section 84(4) or by oral evidence. Both are available; neither is mandatory to the exclusion of the other.

Problem Question Framework

When a document is being tendered or disputed in a problem question, apply this framework.

First, identify whether the document is being tendered for identification (real evidence) or for its contents (documentary evidence). If for identification, the section 83 conditions do not apply.

Second, determine whether the document is computer-generated. If so, section 84 applies in addition to section 83. Have the four conditions in section 84(2) been met? Has the certificate under section 84(4) been produced, or has oral evidence establishing those conditions been called?

Third, identify whether the document is public or private. Public documents may be proved by certified true copy. Private documents require the original or a section 89 exception.

Fourth, apply the section 83 conditions to conventional documents. Is the proceeding civil or criminal? Would oral evidence of the fact be admissible? Does the maker have personal knowledge? Is the document part of a continuous record? Has the maker been called?

Fifth, determine whether the original (primary evidence) is available. If it is, it must be produced. If it is not, identify which section 89 circumstance applies to allow secondary evidence, and check that the type of secondary evidence used is the type permitted for that circumstance under section 90.

Sixth, ask whether objection was raised in time. If no objection was raised, ask further whether the document is inherently inadmissible as a matter of law (failure to object cannot cure it) or merely procedurally irregular (failure to object may waive the point). Apply section 251 to the former category with caution.

Seventh, if oral evidence is sought alongside or to vary the document, apply section 128 and its exceptions. Is the oral evidence seeking to prove the terms of the document (excluded) or to show it is invalid, or to clarify meaning (possibly admitted under exceptions)?

Common Student Mistakes

The first mistake is treating any piece of paper as automatically admissible once tendered. The section 83 conditions must be satisfied. A document not made by someone with personal knowledge and not forming part of a continuous record is not admissible simply because it is relevant.

The second mistake is applying section 83 to computer-generated documents and ignoring section 84. Electronic documents require compliance with the section 84 conditions, which are separate from and in addition to section 83. A student who analyses a bank statement or printout solely under section 83 has missed the more specific regime that governs it.

The third mistake is thinking secondary evidence can be tendered without accounting for the original. Secondary evidence is exceptional. Before it is admitted, the court must be satisfied that the circumstances in section 89 are met, and the party must explain what happened to the original.

The fourth mistake is conflating public and private documents. Only public documents can be proved by certified true copy as a matter of course. Tendering an uncertified photocopy of a public document is not permissible secondary evidence. Tendering a photocopy of a private document requires satisfying a section 89 circumstance and using only the type of secondary evidence permitted for that circumstance.

The fifth mistake is treating the failure-to-object rule as absolute. The rule that failure to object at tendering bars an admissibility challenge on appeal applies to curable procedural irregularities, not to inherent inadmissibility. An uncertified copy of a public document remains inadmissible even if no objection was raised.

The sixth mistake is confusing primary and secondary evidence with strong and weak evidence. Primary evidence is the original document. Secondary evidence is evidence of the contents of the original through copies or oral accounts. Both can be highly probative. The distinction is about production requirements, not credibility.

The seventh mistake is treating the parol evidence rule as absolute. Section 128 has express exceptions. A failure to acknowledge those exceptions produces an incomplete analysis of any problem involving a document and related oral evidence.

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Footnotes

¹ PD Hallmark Contractors Nig Ltd v Gomwalk (2015) LPELR-24462(CA).

² Union Bank of Nigeria v Ozigi (1994) 3 SCNJ 55.

³ Lagos Timber Co Ltd v Titk Combe (1943) 17 NLR 14.

⁴ Unity Bank PLC v Raybam Eng Ltd (2018) 12 NWLR (Pt. 1633) 214 CA.

⁵ John v The State (2011) 18 NWLR (Pt. 1278) 353 SC.

⁶ Ashakacem PLC v AM Investment Ltd (2019) 5 NWLR (Pt. 1666) 447 SC.

⁷ Sunday v FRN (2019) 4 NWLR (Pt. 1662) 211 SC.

⁸ H v Schering Chemical Ltd (1983) 1 WLR 143.

⁹ UNTHM Board v Nnoli (1992) 6 NWLR 759.

¹⁰ Ijiya v State (2019) 16 NWLR (Pt. 1697) 45.

¹¹ Are v Ipaye (1986) 3 NWLR 419.

¹² Kubor v Dickson (2012) 6 NWLR (Pt. 1296) 314 SC.

¹³ Sylva v Dickson (2013) LPELR-20433(SC).

¹⁴ Omoboriowo v Ajasin (1984) 1 SCNLR 209.

¹⁵ Torti v Ukpabi (1984) 1 SCNLR 214.

¹⁶ Nwobodo v Onoh (1984) 1 SC 1.

¹⁷ Sodipo v Mokolu (1991) 7 NWLR (Pt. 203) 375.

¹⁸ Magaji v Nigerian Army (2008) 8 NWLR (Pt. 1089) 338.

¹⁹ Alataha v Asin (1999) 5 NWLR (Pt. 601) 32.

²⁰ Oguma v International Bank for West Africa (1988) 1 NWLR (Pt. 73) 658.

²¹ FRN v Fani-Kayode (2010) 14 NWLR (Pt. 1214) 481.

²² Ashakacem PLC v AM Investment Ltd (2019) 2 SC (Pt. IV).

²³ Orji v FRN (2019) 4 NWLR (Pt. 1663) 480 SC.

²⁴ Anagbado v Faruk (2019) 1 NWLR (Pt. 1653) 292 SC.

²⁵ AG Oyo State v Fairlakes Hotel Ltd (1989) 5 NWLR (Pt. 121) 255.

²⁶ Abi v CBN (2012) 3 NWLR (Pt. 1286) 1.