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Nature of Secondary Evidence Admissible for a Lost or
Destroyed Public Document in Nigeria
J.J. Odinkonigbo
Abstract
As a rule, any secondary evidence of the content
of a document is admissible once it is established
the document in question has been destroyed or
lost irretrievably. But the problem is whether this
rule can apply to public documents. The courts
have consistently held that only a certified copy,
but no other, of a public document is admissible.
This position contradicts the clear provisions of
the Evidence Act. Therefore, this article makes
case for a judicial re-think leading to overrule of
the courts' erroneous position, which has foisted
difficulties and untold hardship on litigants
coming before the courts in Nigeria.
Alternatively, legislative amendment is canvassed
to foreclose the temptation for misrepresentation
of the law by the courts.
Keywords: Evidence Act, public document,

secondary evidence, Nigeria, and India.
1.0 Introduction
Generally, "documents"' may be divided into two distinct
categories under the Evidence Act, 2011 (the Act): a document is
Dr. Jirinwayo Jude Odinkonigbo, Ph.D (Osgoode, Canada), LL.M

(Dalhousie, Canada), LL.B (Enugu). Dr. Odinkonigbo is the Head of
Department of Property Law, Faculty of Law, University of Nigeria,
Enugu Campus.
Evidence Act 2011 (the "Act"), s. 258 describes "document" to include:
'(a) books, maps, plans, graphs, drawings, photographs and also includes
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 or which may be used for the purpose of recording the matter;...'
It should be noted that the Act repealed the Evidence Act, E14 Laws of
the Federation of Nigeria, 2004, which is a replication of the 1945
Evidence Act.
The Nigerian Law Journal Vol. 21, No. 2, 2018 309
either public or private in character. 2 The contents of documents

(whether public or private) may be proved either by primary or
secondary evidence admissible in a court of law. 3 However, the
law requires that documents must be proved by primary evidence
except in cases mentioned in the Act itself . Thus, section 89 of
the Act outlines various instances wherein secondary evidence
may be validly tendered in proof of the existence, condition or
contents of a document. The Act did not stop at merely outlining
the various instances wherein secondary evidence of a document
may be validly tendered in a court of law, it proceeds from
section 90 to outline the kind and/or form of secondary evidence
admissible for each particular instance or case mentioned in
section 89. Therefore, section 90 is the key designed to unlock
section 89.
Section 89(c) provides that secondary evidence may be given of

the existence, condition or contents of a document, when the
original has been destroyed or lost and in the latter case all
possible searches have been made for it. In response, section
90(1)(a) stipulates that any secondary evidence of the content of
a document is admissible thereto; that is, when the condition(s)
covered by section 89(c) occur(s). But the problem is whether
this rule can apply when a public document is destroyed or lost
and all possible searches conducted could not reveal the
whereabouts of the original copy. Relying strictly on section
90(1)(c) of the Act, the courts have consistently held that only a
certified copy, but no other, of a public document is admissible
as a secondary evidence. Ironically, this position appears to
suggest that a public document is indestructible and/or cannot be
lost: thereby, foisting untold hardship on litigants who may lead
secondary evidence of a destroyed or irretrievably lost public
document(s). This thinking is wrong and irreconcilable with
neither logic nor common sense, especially now that terrorism,
conflicts, and destruction of properties appear to be on the
increase. Even without premeditated destruction of properties,
relevant documents could be inadvertently destroyed or lost
irretrievably. A better and more practical rule could have been
reached if the courts had truly applied the strict construction
2 C.C. Nweze, Contentious Issues and Responses in Contemporary

Evidence Law in Nigeria (Enugu: Institute for Development Studies, Vol.
1, 2003) p 297
3 The Act, s 85.
4 The Act, s 88.
310 Nature ofSecondary Evidence Admissible for a Lost or Destroyed Public
Document in Nigeria
approach without unnecessary assumptions; or, altogether

jettisoned the literal construction approach in favour of a liberal
interpretation that would have ensured substantial justice is done
to the parties in dispute. If this approach was followed, the
Supreme Court in the locus classicus, Araka v. Egbue5 , ought to
have arrived at the right answer without embarking on the wrong
assumption that sections 91(1)(c) and 92(1)(a) of the Evidence
Act, Cap. 112, Laws of the Federation of Nigeria, 19906 [now
sections 89(c) and 90(1)(a)] of the Evidence Act, 2011] apply
only to private documents; when it is obvious the sections
specifically apply to both private and public documents that are
destroyed or lost, irretrievably. It is, therefore, argued that the
Supreme Court should have a re-think and overrule the
burdensome precedent that it has set for courts in Nigeria.
Alternatively, this paper makes case for a legislative review
and/or amendment of the Evidence Act to ensure the courts are
not, in the future, misled in their duty to fairly and correctly
interpret the law.
To establish the thesis set out above, this paper is divided

into seven parts. Following the introductory Part, Part 2
examines the concept of public document under the Act. It is
found that a public document is one made for the purpose of the
public making use of it, and to which the public has access. It
(2003) 17 NWLR (Pt. 848) 1.

6 The first Evidence Act was promulgated by the British colonial
administration in 1943. It took effect in 1945. This Act has been severally
and slightly amended in 1950, 1955, 1958, 1977, 1990, and 2004 before
the present Evidence Act, 2011 was enacted. This later legislation
repealed the Evidence Act, Cap. E14, Laws of the Federation of Nigeria,
2004. Virtually, all the versions of the Evidence Act contain verbatim
replication of the same provisions in all the amended statutes. The only
difference, outside slight amendments introduced, is that verbatim
provisions of a section of an old Evidence Act will be found in a different
section in a new Evidence Act replacing the old one. Only slight
amendments were really made; but in the present sections examined,
there has been no amendment. The exact wordings of the sections relating
to the admissibility of secondary evidence of public and private
documents remain the same. See, Hon. Justice Abiodun Akinyemi, 'The
Evidence Act 2011 - An Appraisal' (paper presented at the Ogun State
Bar and Bench Forum, June 12 Cultural Centre, Abeokuta, 11 July 2013)
p 2.
concludes that save public records kept in Nigeria of private

documents, public documents must be made or authored by a
public officer. In Part 3, the nature of a secondary evidence of
document under the Act is examined. This part posits that
secondary evidence could be in different forms and content. It
goes further to list the different forms of secondary evidence
under the Act. The most important thing is for a secondary
evidence to be in the form that the Act recommends for such to
be admitted in evidence. Part 4 considers the admissibility of a
secondary evidence of public document under the Act. It finds
that in Nigeria the kind of secondary evidence admissible of a
public document is a certified copy thereof but no other. Part 5
proceeds to consider the admissibility of a destroyed or lost
public document in Nigeria. It establishes that the state of a
public document, that is whether or not a public document is
destroyed or lost irretrievably, does not affect the nature of
secondary evidence usually admissible of such document.
Therefore, it is proved in this Part that regardless of the state of
public documents, the Nigerian courts admit only the certified
copy, but no other. Consequently, it is argued that the courts
have failed in their duty to interpret the Act correctly. Part 6
examines the kind of secondary evidence admissible of a
destroyed or lost public document in India to see if there is any
lesson Nigeria could learn from the Indian experience. This part
shows that regardless both Nigeria and India share similar
provisions in their respective Evidence Acts, the courts of the
two countries interpret those provisions differently. It is argued
the Indian interpretation accords more with the spirit of the law
and substantial justice; and, therefore, preferred to the Nigerian
experience. Part 7 concludes the article.
2.0 The Concept of Public Document under the Act

The concept of public document under the Act has not yielded
itself to easy construction. However, a review of section 102 of
the Act shows that there are two categories of public document. 7
They are provided for in section 102(a) and (b) of the Act as
follows:
(a) Documents forming the acts or records of the

acts of
-
(i) The sovereign authority;
7 Nweze, above n 2.
Document in Nigeria
(ii) Official bodies and tribunals; and

(iii) Public officers, legislative,
judicial and executive, whether of
Nigeria or elsewhere.
(b) The second group is covered by section 102(b)
of the Act, which classifies "public records
kept in Nigeria of private documents" as
public document.
It seems that the sort of "acts" which section 102(a) of the Act
has in view is indicated in section 106 of the Act. The courts
have pronounced on the import of the concept of public
document as employed under the Act. In Ukana v. C.O.P. 9 the
Court of Appeal held that a public document means a document
made by a public officer for the purpose of the public making use
of it and being able to refer to it. In other words, it is a document
made for the purpose of the public making use of it and one to
which the public has access. 10 In arriving at this decision, the
court relied on the English case of Lilley v. Pettit," where
regimental records of military officers were held to be non-
public documents because they were not kept for the use and
information of the public but for the information of the Crown
and the Executives; and also in loannou v. Demetruou,12 where it
was held that for a document to be admissible as a public
document, it should not only be available for public inspection
but also have been brought into existence for that purpose.13
However, Fidelis Nwadialol 4 has expressed a contrary view. For
him, the word "public" within the context of "public document"
Fidelis Nwadialo, Modern Nigerian Law of Evidence (Lagos: University

of Lagos Press, 2 nd edn,1999) p 307. The provision of section 106 of the
Act is a rather compendious provision which I shall not bother to
reproduce here.
9 (1995) 8 NWLR (Pt. 416) 705 C.A.
10 See A. M. Adebayo, Evidence Act, 2011 Annotated with Cases (Lagos:
Princeton Publishing Co., 3 rd edn, 2012) p 185.
125 401; (1946) 1 All ER 593.
(1946) KB
12 (1952) 1 All ER 179.
13 Adebayo, above n 10, pp 185-186. See also: Salami v. Ajadi (2008) 25
WRN 144 at 163; Salami v. C.O.P (2009) 22 WRN 27 at 58 and Gov. of
Ekiti State v. Ojo (2006) 17 NWLR (Pt. 1009) 95 at 127 paragraphs C-G,
per Abdullahi, JCA.
14 Fidelis Nwadialo, above n 8.
under the Act should not be construed to mean the whole world;
rather it means all persons concerned with or interested in the
subject-matter of the document.' 5 This is an obvious
contradiction of the Court of Appeal's position above. Perhaps,
this informs Justice Nweze's opinion that the word 'public' in
the definition of 'public document' has generated lots of
controversies.16 He reasoned that the decision in Ukana v.
C.O.P.1 7 and the reliance on English law requirements on the
definition of public documents as opposed to the reuirements of
the Act, such as the reliance on Sturla v. Freccia, would have
the effect of depriving privileged communications under sections
191 and 243 of the Act of their status as public documents.
According to the jurist, to deny their status as public documents
simply because of their inaccessibility would be to wreak havoc
on the trenchant provisions of section 102 of the Act. He
concluded by urging the relevant courts to revisit the opinion in
Ukana v. C.O.P. at the earliest opportunity that might present
itself: a position this paper is aligned with.
In any case, it would seem that so long as the Act remains in its
current shape, the concept of public document under the Act
would bear the following attributes: a public document is one
made for the purpose of the public making use of it, and one to
which the public has access. It means a document that is meant
for the purpose of public use, especially where there is a judicial
or quasi-judicial duty on the part of the public authority with the
custody of the document in question to facilitate public access to
it. The very object of the relevant document must be that the
public, that is, all interested in it, may have access to it. A public
document, save public records kept in Nigeria of private
documents, must be made by a public officer. 20 A public
document must be brought into existence and preserved for
public use on a public matter and must be open to public
inspection. A combined reading of sections 102 and 104 of the
15 Sturla v. Freccia (1880) 5 App. Cas. 623 @ 643 - as cited in Fidelis

Nwadialo, Ibid.
16 Nweze, above n 2.
17 Ukana v. C O.P. above n 9.
18 Sturla v. Frecciaabove n 15.
19 Ukana v. C O.P. above n 9.
20 Section 102 of the Act.
Document in Nigeria
Act would lend credence to the attributes of a public document

as described herein.21
3.0 Secondary Evidence of a Document under the Act

The terms "primary" and "secondary" evidence are employed in
reference to a sub-classification of documentary evidence. 22
Where the actual document itself is produced for the inspection
of the court, this is referred to as the primary evidence of that
document. 23 In other words, the term primary evidence refers to
the original of the document in which the facts to be proved are
stated.2 4 Secondary evidence, on the other hand, refers to either a
copy of the original document or oral account of the contents
thereof tendered before the court in proof of the facts stated
therein. 25
Section 87 of the Act provides that secondary evidence includes:
(a) certified copies given under the provisions
contained in the Act;
(b) copies made from the original by mechanical
or electronic processes which in themselves
ensure the accuracy of the copy, and copies
compared with such copies;
(c) copies made from or compared with the
original;
(d) counterparts of documents as against the
parties who did not execute them; and
(e) oral accounts of the contents of a document
given by some person who has himself seen it.
The case of Onochie v. Ikem 26 considered when a document
could be said to be a certified copy under section 87(a) of the
Act. This case was an interlocutory appeal against the decision of
the trial court rejecting two copies of the same survey plan
sought to be tendered in evidence by the appellants. At the
21 Fidelis Nwadialo, above n 8, pp 307-308.
22 Ibid, p 14.
23 Fidelis Nwadialo, above n 8, p 14. See also Ogu v. MT. & M.C.S. Ltd.
(2011) 8 NWLR (pt. 1249) 345 at 374, paragraph H.
24 Fidelis Nwadialo, above n 8.
25 Ibid.
26 (1989) 4 NWLR (Pt. 116) 458 C.A.
hearing of the suit in the trial court, the appellants sought to

tender through the DW3, an archivist in the National Archives,
photocopies of the said plan. The said DW3 testified that the
photocopies were certified by him as being copies of a plan kept
by the archives. The respondent objected to the admissibility of
each of the plans on the grounds that the document sought to be
tendered was never signed by either the supposed maker thereof
or the person who traced it, and was therefore not certified true
copies of the original plan. In its ruling, the trial court upheld the
objection of the respondent and rejected both documents.
Aggrieved, the defendants appealed. It was held that the two
contested documents are certified true copies, since they were
traced by a known person from the original plans and therefore
within the class of documents classified as secondary evidence
under an equivalent provision of section 87 of the Act.
4.0 Admissible Secondary Evidence of a Public Document

under the Act
Section 85 of the Act provides that the contents of documents
may be proved either by primary or secondary evidence. Section
88 of the Act, on the other hand, provides that documents must
be proved by primary evidence except as exempted in the Act. At
first glance, these provisions would seem to contradict
themselves. But, in fact, they do not. Indeed, it was not until the
decision in Ogu v. M T. & M.C.S. Ltd.2 7 that the Court of Appeal
expatiated on the logical connection between both provisions. In
that case, the court relied on similar provisions as those of
section 88 of the Act to hold that documents must be proved by
primary evidence except in the cases mentioned in the Act. The
court stated that the provisions are directory, commanding and
imposing in language and intent in the first instance in all cases
apart from those mentioned in later provisions of the Act;
particularly in sections 89 and 90 of the Act. 2 8 According to the
court, the clear intention of section 88 of the Act is to impose a
duty or obligation on a party to prove the contents of a document
by the production of the original document itself, which is the
primary evidence thereof, for the inspection of the court except
in the cases mentioned thereafter in which secondary evidence of
such documents may be given.
27 (2011) 8 NWLR (Pt. 1249) 345 C.A.

28 Ibid, p 374, paragraphs B - C.
Document in Nigeria
It was further held that by virtue of an equivalent of section 85 of

the Act, the contents of documents may be proved either by
primary or secondary evidence. According to the court, the
purport of the provision is to give a party the option or discretion
to prove the contents of a document generally in judicial
proceedings either by primary or secondary evidence. For the
court, the provisions confer or vest a discretion that the contents
of documents may be proved either by the production of the
documents in their original state/form for the court to inspect
them or by the production of certified copies under the relevant
provisions of the Act.
The court explained that the law, as far as judicial practice on the
application of the provisions above is concerned, has been that
the best evidence of the contents of a document is the production
of the document itself. Thus, the contents of a document may be
proved by the production of the document in its original form or
by the production of a certified copy given under the relevant
provisions of the Evidence Act.
In my view, a correct interpretation of the decision above is to

the effect that pursuant to the provisions of section 88 of the Act,
all documents must be proved by primary evidence except in
cases where secondary evidence is expressly permitted under the
Act, and this statutory rule is most likely based on the common
law best evidence rule. 29 However, in cases where secondary
evidence of a document is expressly permitted under the Act,
parties have an option of either tendering the primary evidence of
the document in question or the requisite secondary evidence
thereof In such a case, either will be admissible, but not
otherwise.
Thus, section 89(e) of the Act provides for one of the various
situations under the Act 30 where secondary evidence of a
document may be admissible. It provides that secondary
evidence may be given of the existence, condition or contents of
a document when the original is a public document within the
29 Ibid, p 374, paragraphs B-D. See also PurificationTechnique Nig. Ltd.

&
Ors. v. Rufai Jubril& Ors. (2012) LPER-9727.

30 Indeed, in Jacob v. A. G. Akwa Ibom State (2002) All FWLR (Pt. 86) 578
C.A., it was held by the Court of Appeal that secondary evidence is
permitted to be used in cases falling within the provisions of an
equivalent of section 89 of the Act.
meaning of section 102 of the Act. The kind and/or form of

secondary evidence required in such circumstance is captured by
section 90(1)(c) of the Act. It stipulates that the secondary
evidence admissible in respect of the original document referred
to in paragraph (e) of section 89 is a certified copy of the
document, but no other kind of secondary evidence. The
provisions above have attracted a plethora of judicial
pronouncements.
In Minister of Lands, Western Nigeria v. Dr. Nnamdi Azikiwe, 3 1

the Supreme Court held that in the case of public documents, the
only type of secondary evidence permissible is a certified true
copy of the document and none other. 3 2 It therefore found that
the document marked exhibit '2' which was sought to be
admitted was not a certified true copy but a photocopy and was
therefore inadmissible. 3 3 The court further held that although
there was no objection to its admissibility when it was produced,
it was however not within the competence of parties to admit by
consent or otherwise a document which, by law, was
inadmissible. 34
Also, in Onobruchere v. Esegine, 3 5 the appellants challenged the

admissibility of exhibits E, El and E2 which were uncertified
copies of original documents of official records (including
judgments). The Supreme Court held that unless duly certified,
exhibits E, El and E2 were inadmissible as they were copies of
official records (Exhibits El and E2 being judgments). The Court
maintained that in absence of the primary evidence, a party
relying on secondary evidence of a public document must tender
the certified true copy of the document.36
Thus, it is now established law that in Nigeria the kind of

secondary evidence which is admissible of a public document is
the certified true copy thereof but no other.
31 (1969) 1 All NLR 48.

32 Ibid, pp 49, 57-58.
33 Ibid, p 58.
34 Ibid.
35 (1986) 1 NWLR (Pt. 19) 799.
36 Similar decision as was reached in Nzekwu v. Nzekwu (1989) 2 NWLR
(Pt. 104) 373; N.I.D.B. v. Fembo (1997) 2. NWLR (Pt. 489) 543; Araka v.
Egbue (2003) 17 NWLR (Pt. 848) 1; Achor v. Adejoh (2010) 6 NWLR
(Pt. 1191) 537.
Document in Nigeria
5.0 Admissible Secondary Evidence of a Lost or

Destroyed Public Document
From the authorities earlier discussed, it is not in doubt that the
secondary evidence admissible of a public document is only a
certified true copy of the document, but no other. But same
cannot be said of the nature of secondary evidence admissible of
a destroyed or irrecoverably lost public document. Some may
argue that there is lacuna in the law concerning the nature of
secondary evidence admissible of a destroyed or lost public
document. I do not share this view. But for the purpose of this
study, the so-called lacuna appears to have become obvious after
the decision of the Supreme Court in the case of Araka v.
Egbue.3 7 In this case, the appellant sued the respondent at the
High Court of Lagos State claiming damages for libel contained
in a letter written by the respondent concerning the appellant and
in the way of his office as Chief Judge of Anambra State. At trial
of this matter, the appellant called a witness who was the
representative of the Principal Secretary to the subpoenaed
Executive Governor of Enugu State38 to tender the letter
containing the libellous materials. The representative of the
government testified that the original letter 39 could not be found
after all searches had been conducted. As a result, he tendered a
photocopy of the letter in question. Counsel for the respondent
objected on the grounds that the letter being a public document40
can only be admitted in evidence if it is a certified copy of the
original as required by the equivalent provisions of sections
89(e) and 90(1)(c) of the Act. The trial court overruled the
objection and held that the original of the letter having been lost,
any secondary evidence of the lost document is admissible under
37 Araka v. Egbue (2003) 17 NWLR (pt. 848) 1.

38 The present Enugu and Anambra States were carved out of the old
Anambra State referred here. The regional seat of power, both for the
present Enugu and old Anambra States respectively, has been in Enugu.
This explains why the Governor of Enugu State was subpoenaed.
39 Which was addressed to the Military Governor of Anambra State at the
time.
40 It was proper to describe the letter as a public document because the
description falls into the definition of public document by section 102(b)
of the Act, ie public records kept in Nigeria of private documents.
Indeed, in Bob-Manuel v. Woji (2010) 8 NWLR (Pt. 1196) 260, the Court
of Appeal held that where a private document is kept in a public place, it
becomes a public record of the document. And the document, though a
private document, becomes a public document and its proof by tendering
a certified true copy thereof is sufficient.
the equivalent provisions of sections 89(c) and 90(1)(a) of the

Act. 4 1 The document was thereafter admitted in evidence.
Aggrieved with the ruling of the trial court, the

respondent lodged an appeal at the Court of Appeal. The appeal
was allowed. The Court of Appeal held that the secondary
evidence admissible of a public document is a certified true copy
of the document but no other kind of secondary evidence.
Dissatisfied, the appellant appealed to the Supreme Court which
unanimously dismissed the appeal, ordered a trial de novo and
held that the only acceptable secondary evidence of a public
document is a certified true copy of the document but no other.
To arrive at the above decision, the Supreme Court relied heavily

on the following Nigerian cases: The Minister of Lands Western
Nigeria v. Dr. Nnamdi Azikiwe 42 ; Onobruchere v. Esegine43 ; and
Nzekwu v. Nzekwu4 4 . Of these decisions, only Nzekwu v. Nzekwu
deals with a lost public document. Therefore, it is instructive to
review it. In this case, the respondent in a claim for recovery of
possession of land sought to rely on a Native Court judgment
which confirmed her claim but did not tender same in evidence.
The trial court found that the judgment of the Native Court
pleaded by the respondent could not be tendered because it was
destroyed during the Nigerian civil war. It, therefore, found for
the respondent by accepting the oral testimony of the witness
called. Aggrieved, the appellants appealed to the Court of Appeal
which dismissed the appeal and upheld the judgment of the trial
court. Still aggrieved, the appellants appealed to the Supreme
Court. It was held that since a judgment of a court is a public
document within the meaning of the Act, the secondary evidence
admissible in respect of the original document constituting the
proceedings and judgment of a court is a certified true copy of
the document but no other kind of secondary evidence is
permissible. The Supreme Court held that both the trial court and
the Court of Appeal failed to properly apply the equivalent
provision of sections 89(e) and 90(1)(c) of the Act. It reasoned
that the trial court was in error to have accepted the oral evidence
of a witness as proof of the existence of the judgment of the
41 Araka v. Egbue, above n 5 p 13, paragraphs B-C.

42 The Minister of Lands Western Nigeria v. Dr.Nnamdi Azikiwe (1969) 1
All NLR 48.
43 Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799.
44 Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373.
Document in Nigeria
Native Court. Indeed, the court was unmoved by the fact that the
the judgment of the Native Court sought to be tendered by the
respondent had been destroyed during the Nigerian civil war, and
therefore rendered the making of certified true copies of the
original document absolutely impossible.
Since it was found at the trial court that the judgment of the
Native Court pleaded by the respondent could not be tendered as
many of such documents were destroyed during the civil war, it
was therefore irrational and indeed an injustice for the
respondent to be compelled to tender a certified copy thereof.
The law cannot command the impossible: for the law of equity
comes to ameliorate the hardship of common law and all rigid
rules that visit hardship on the people. 45 Requiring a party to
produce certified true copies of destroyed or irrecoverably lost
documents, whether public or private, is without doubt a
command to do the impossible. This is antithetical to the spirit of
the law and therefore could not have been the intendment of the
legislature which enacted the Act. A certified true copy of the
document can only be obtained if the original document is still in
existence and within reasonable reach. The Supreme Court
ignored the evidence of P.W 2 who was one of the judges that
unanimously decided the matter in favour of the 1 st Respondent
at the Native Court. P.W.2 testified that a judgment of the Native
Court in favour of the Respondent existed. Considering that the
original document containing the judgment of the Native Court
has been destroyed during the civil war, oral account of the
contents of the said judgment should have sufficed as secondary
evidence thereof Indeed, this much was recognized by the Court
of Appeal in that case.
A joint reading of the provisions of sections 89(e) and 90(1)(c)
of the Act is to the effect that where the original of a document
is a public document within the meaning of section 102 of the
Act, the secondary evidence admissible is nothing but a certified
copy of the document. However, a combined reading of the
provisions of sections 89(c) and 90(1)(a) of the Act is to the
effect that where the original of a document has been destroyed
or lost and in the latter case all possible searches have been made
without success, any secondary evidence may be given of the
45 J.A. Obanor & Co. Ltd. v. Co-operative Bank Ltd. (1995) LPELR-1583
(SC).
existence, condition or contents of the original copy of the

destroyed or lost document.
46
But the Supreme Court in Araka v. Egbue4 6 , and other cases 47
prefers to hold that once a public document is involved, the only
admissible secondary evidence thereof is a certified true copy but
no other. Indeed, in Araka's case, the court held that the
interpretation of sections 89(c) and 90(1)(a) on one hand, and
sections 89(e) and 90(1)(c) on the other shows that sections 89(c)
and 90(1)(a) are general provisions, whilst sections 89(e) and
90(1)(c) are specific provisions when it comes to the type and/or
form of secondary evidence applicable to a public document. The
court reasoned that once there is a contention as to which of
general provision and specific provision should apply in a given
matter, the specific provision is always preferred. Thus, the court
concluded that sections 89(c) and 90(1)(a) apply to private
document(s). It reasoned that because the relevant provisions,
such as sections 89(e) and 90(1)(c), are clear and unambiguous
they must be literally construed - which is, that section 90(1)(c)
does not admit any other form of secondary evidence but a
certified true copy, and that section 90(1)(a) is inapplicable. The
court acknowledged that there is a lacuna in the law when a
public document is destroyed or lost, irrecoverably. 48 Regardless,
it asserted that it cannot fill the lacuna through judicial
pronouncements; otherwise it would be engaging in judicial
legislation, which is not part of its constitutional duties. 49 This
means that once a public document is destroyed or irrecoverably
lost in Nigeria, there is nothing anyone can do about it and the
court cannot offer any assistance to ensure justice is done.
The Supreme Court and all other courts that applied the principle
established in Araka v. Egbue are grossly in error. First, the
Supreme Court found that the provisions of the Evidence Act
involved in this matter are clear and unambiguous. Thus, Justice
Niki Tobi, who read the lead judgment, reasoned that:
46 Araka v. Egbue, above n 5.

47 See Nzekwu v. Nzekwu, above n 44; The Minister of Lands, Western
Nigeria v. Dr. Nnamdi Azikiwe & Ors., above n 42; and Onobruchere v.
Esegine, above n 43.
48 Araka v. Egbue, above n 5 p 26, paragraphs D-F.
49 Araka v. Egbue, above n 5 p 21, paragraphs B-E. Recently, the Supreme
Court maintained the same position in Oba Gabriel Adekunle
Aromolaran v. Dr (Rev.) Roland Olapade Agoro (2015) All FWLR (Pt.
766) 574.
Document in Nigeria
Let me examine a bit of the law in the area of

statutory interpretation. The duty of the court is to
interpret the words contained in the statute and not
go outside the words in search of an interpretation
which is convenient to the court or to the parties
or one of the parties. Even where the provisions of
a statute are hard in the sense that they will do
some inconvenience to the parties, the court is
bound to interpret the provisions once they are
clear and unambiguous. It is not the duty of the
court to remove the chaff from the grain in the
process of interpretation of a statute to arrive at
favourable terms for the parties outside the
contemplation of the lawmaker. That will be
tantamount to traveling outside the statute on a
voyage of discovery. This court cannot embark
upon such a journey.so
It is therefore contradictory and irreconcilable to see the
Supreme Court violate an interpretative threshold it set for itself
(as seen above) by holding (per same Niki Tobi) that:
In my humble view, section 97(2)(a)[the
equivalence of section 90(1)(a) of the Evidence
Act, 2011] anticipates private documents within
the very vague meaning of section 110 of the Act
[the equivalence of section 103 of the Evidence
Act, 2011]. In other words, while section 97(2)(c)
[the equivalence of section 90(1)(c) of the
Evidence Act, 2011] provides for public
documents, section 97(2)(a) provides for private
documents, which section 110 simply defines as
all other documents which are not public
documents. 5 1
I have earlier stated that section 90 of the Act is the key that
unlocks the provisions of section 89. It is, therefore, our view
that the Supreme Court imported into section 97(2)(a) [the
current section 90(1)(a) of the Evidence Act, 2011] what is not
part of it. For clarity, section 90(1)(a) provides:
50 Araka v. Egbue, above n5 p 21, paragraphs B - E.

51 Ibid, p 18, paragraphs E - F.
'The secondary evidence in respect to the original

documents referred to in the several paragraphs of
section 89 is as follows:
(a) in paragraphs (a), (c) and (d), any

secondary evidence of the contents of
the document is admissible.'
To appreciate the import of the above provision, it must be noted

that section 89(c) provides that:
'Secondary evidence may be given of the

existence, condition or contents of a document
when
-
(c) the original has been destroyed or lost

and in the latter case all possible
search has been made for it.'
Having seen the clear provisions of sections 89(c) and 90(1)(a)

of the Act, it is therefore doubtful where and how the Supreme
Court arrived at the conclusion that they deal with private
documents. None of the provisions mentioned either private or
public document. Indeed, they are silent on that point: which
means, the provisions apply to both private and public
documents provided the condition mentioned in section 89(c)
(that is, the document is destroyed or lost irrecoverably) is
established to exist. In fact, a literal interpretation of the clear
and unambiguous provisions of sections 89(c) and 90(1)(a)
shows that they (the provisions) cover situations, where a
document is destroyed or lost, irrecoverably. This condition (that
is, where a document is destroyed or irrecoverably lost) is
completely absent in sections 89(e) and 90(1)(c).
Section 89(e) provides that:
'Secondary evidence may be given of the

existence, condition or contents of a document
when
-
(e) the original is a public document

within the meaning of section 102'
Section 89(e) is unlocked by section 90(1)(c) in the following

words:
Document in Nigeria
'The secondary evidence in respect to the original

documents referred to in the several paragraphs of
section 89 is as follows:
(c) in paragraph (e) or (f), a certified

copy of the document, but no other
secondary evidence is admissible.'
Though section 89(e) of the Act provides for a public document,

it is silent on what happens when such public document is
destroyed or irrecoverably lost. But this condition is clearly
provided for in section 89(c). It is therefore wrong for the
Supreme Court to have held in Araka v. Egbue that sections
89(c) and 90(1)(a) are general provisions while sections 89(e)
and 90(1)(c) are specific provisions. One is tempted to ask:
specific in what sense? Is it specific as to lost and/or destroyed
documents - especially when it is clearly obvious that sections
89(c) and 90(1)(a) cover both private and public documents?
Indeed, section 89(c) and 90(1)(a) are specific provisions for
clearly, unambiguously and specifically providing for the type of
secondary evidence admissible when a document, whether
private or public, is destroyed or lost irrecoverably. This
condition is absent in sections 89(e) and 90(1)(c). It is, therefore,
safe to hold that once a document is established to have been
destroyed or lost irrecoverably, section 89(c) and 90(1)(a) will
apply.
What is expected of the court is to ensure that proper foundation

is laid by the party intending to rely on destroyed or lost public
document: that is, to show that the document has been destroyed
or lost irrecoverably. And, also, to ensure that the custodian of
the public document is called to testify on the status of the
document. Once, this is done, the court can admit the most
credible secondary evidence of the content of that original
document. Without this, it appears that the courts suggest that
public documents are indestructible or cannot be lost,
irrecoverably. The argument that there is a lacuna in the law is
not tenable considering the provisions earlier examined. The
court cannot foist such a difficult and impossible situation on
litigants when there are clear provisions of the law that could
alleviate the hardship visited on them. Our law cannot take the
position of the rigid and inflexible status of common law when
there are clear provisions that have rescued beneficiaries of
destroyed or irrecoverably lost documents from the obvious

hardship that have, unfortunately, been endorsed by the Supreme
Court.
Alternatively, the National Assembly is advised to amend the

provisions of section 90(1)(c) by deleting the phrase "...but no
other secondary evidence..." Doing this, will remove the
proclivity to believe that no other form of secondary evidence is
applicable to a public document, even when it is destroyed or
lost, but a certified true copy of it thereof Further amendment
should be carried out by inserting after the word "original" in
section 89(c) the phrase "which may be public or private
document"; so that the section will read like this: 'Secondary
evidence may be given of the existence, condition or contents of a
document when - the original, which may be public or private
document, has been destroyed or lost and in the latter case all
possible search has been made for it.' There is no need to amend
section 90(1)(a) because its provision, considering the language
in which it is couched and its reach or thrust, is quite clear.
To support the position that any secondary evidence of a

destroyed or lost public document should be allowed in evidence
without the insistence on certified copy, the next Part of this
paper examines the practice in India, a country with similar
statutory provisions, to encourage Nigeria accept the argument
canvassed above.
6.0 Secondary Evidence Admissible of a Lost or

Destroyed Public Document in India
I have chosen to discuss the law and practice in India simply
because the relevant provisions of Indian Evidence Act, 1872
(the "Indian Act") are on all fours with those of Nigeria.
However, the interpretation offered by the courts in India in
respect of those provisions is diametrically opposed to that of
Nigerian courts.
Section 65(c) of the Indian Act 5 2 provides that secondary

a document when the original has been destroyed or lost, or
when the party offering evidence of its contents cannot, for any
other reason not arising from his own default or neglect, produce
52 This section is similar with section 89(c) of the Nigerian Evidence

Act,
2011.
Document in Nigeria
it in reasonable time. Section 65(e) provides that secondary

a document when the original is a public document. 53 Section
6554 further provides that in cases covered by section 65(c), any
secondary evidence of the contents of the document is
admissible 5 5 ; and in cases covered by section 65(e), a certified
copy of the document, but no other kind of secondary evidence,
is admissible. 56
However, even as far back as 1955, an Indian High Court in

Chikka Veerasetty v. Nanjundachari & anor.,57 had already
taken the position that section 65(e) of the Indian Act seems to
apply to a case in which a public document is still in existence on
the public records; and that the provision appears to have been
intended to protect the originals of public records from the
danger to which they would be subjected by constant production
of such documents in courts for evidential purposes. The Court
further held that section 65(e) does not interfere with the general
rule of evidence given in section 65(c) - that is, in cases where
the original is destroyed or lost irretrievably. The Court
proceeded to admit in evidence uncertified copies of public
documents which were shown to have been lost or destroyed by
no fault of the appellant/petitioner.
Also, as recently as 2015, an Indian High Court in Sathyan & 9

ors. v. Krishnankutty & 2 ors.58 held that the rule that only a
certified copy of the original is admissible as secondary evidence
when the original is a public document is a provision intended to
protect the originals of the public records from the dangers to
which they would be exposed by constant production in
53 This section is similar with section 89(e) of the Nigerian Evidence Act,
2011.
54 The whole of this section is similar to both sections 89 and 90 of the
Nigerian Evidence Act, 2011. Immediately after paragraph "g" of section
65 of the Indian Act, the same section, in the fashion of section 90(1) of
the Nigerian Evidence Act, proceeded to provide for the nature and form
of secondary evidence that each of its earlier paragraphs would take.
5 This is similar to section 90(1) of the Nigerian Evidence Act, 2011.
56 This is similar to section 90(1)(c) of the Nigerian Evidence Act, 2011.
5 Chikka Veerasetty v. Nanjundachari& anor. (1955) AIR Kant 139.
51 Sathyan & 9 ors. v. Krishnankutty & 2 ors. This is a decision of the
Kerala State High Court delivered on 27 October 2015 and reported as AS
17/2012 OfPrincipalSub Court v. Sathyan (accessible via Indian Kanoon
- http://indiankanoon.org/doc/40673625/).
evidence. But that it does not apply when the original of the
public document has been lost or destroyed. According to the
Court, if the original is lost or destroyed, clarification given in
respect of cases coming under section 65(c) of the Indian Act
would apply to public documents as well. Otherwise, the
contents of a public document cannot be proved, if its original is
lost or destroyed; for a certified copy cannot be obtained if the
original is not in existence. 59
Even more significant is the decision of the Indian Supreme

Court in Marwari Kumhar & ors. v. Bhagwanpuri Guru
Ganeshpuri & ors., 6 0 where it was held that section 65(c) of the
Indian Act is independent of section 65(e) of the same Act; and
as such, secondary evidence can be led, even of a public
document, if the conditions laid down in section 65(c) are
fulfilled. Thus, if the original of a public document has been lost
or destroyed, then the secondary evidence thereof can be given
notwithstanding that it is a public document. As a result, the
court accepted an ordinary copy of the original of an earlier court
judgment (a public document) to be sufficient following the loss
of the original copy and the unavailability of a certified copy of it
thereof 61
From the above, it is clear that the law in India as established by

the Indian courts is that the rule that secondary evidence
admissible of a public document is a certified true copy but no
other, is inapplicable where the original of the public document
is shown to the satisfaction of the court to have been destroyed or
lost irretrievably. The only caveat is that the said loss or
destruction must not have been occasioned by the fault of the
person seeking to tender such public document in evidence.
7.0 Conclusion
In this paper, I have been able to show that if the original of a
public document is destroyed or lost irrecoverably, thereby
59 Indeed, a similar view was taken by the State of Madras High Court of
India in Kunneth OdangatKalandan v. Vayoth (1883) ILR 6 Mad 80.
60 Marwari Kumhar & ors. v. Bhagwanpuri Guru Ganeshpuri & ors. (2000)
Supp(2) SCR 368, judgment of the Indian Supreme Court delivered on 10
August 2000 (available at Indian Kanoon
-
https://indiankanoon.org/doc/889011/).
61 According to the Court, this is the law in India as has been laid down by
the Indian Supreme Court in Mst. Bibi A is ha & ors. v. The Bihar Suhai
Sunni MajlisAvaqaf & ors. (1969) AIR SC 253.
Document in Nigeria
rendering the making of a certified copy impracticable, it would

be unjust not to admit any other form of secondary evidence such
as a photocopy of the original document or oral testimony as to
the existence, condition and/or contents of the public document.
This injustice becomes more disheartening and indefensible
when it is obvious that our courts have erroneously ignored the
clear and unambiguous provisions of sections 89(c) and 90(1)(a)
of the Act, which clearly make provision for destroyed or lost
document. These sections clearly cover both private and public
documents. But the Supreme Court, on its own and without
express legislative support thereto, held that sections 89(c) and
90(1)(a) apply to private documents. This erroneous conclusion
shows that the Supreme Court failed a test that it set for itself,
that is, to abide by the literal construction approach. There was
no way a strict interpretations of the relevant sections of the
Evidence Act, would have led to the conclusion that sections
89(c) and 90(1)(a) apply to private documents only.
It is argued that although sections 89(e) and 90(1)(c) relate to

public document, they do not cover situations envisaged by
sections 89(c) and 90(1)(a) which clearly make provision for
destroyed or irrecoverably lost document(s). To hold that no
other form of secondary evidence except a certified true copy is
admissible in proof of the existence, conditions, and contents of a
destroyed or irrecoverably lost public document is to command
the doing of the impossible. The courts ought not to have ruled
that the phrase '... but no other secondary evidence is admissible'
is applicable to a destroyed or irrecoverably lost public
document. It is only from an available public document that a
certified true copy of it can be obtained - simply because it is
available and has not been destroyed or lost, irrecoverably.
Therefore, the court ought not to have buried its head in the sand
like an ostrich ignoring the clear provisions of sections 89(c) and
90(1)(a) which clearly recognize the conditions and circumstance
lacking in sections 89(e) and 90(1)(c). Regardless, our courts are
courts of equity that must not allow the perpetuation of injustice,
especially when the law clearly points a direction that will
salvage an ugly situation, like we currently face in Nigeria. The
days of inflexible common law regime that has no fair and just
solution to certain problems have gone. We are in an era of
substantial justice.
Indeed, without admitting that an honest and true application of

the strict construction approach to the relevant provisions of the
Evidence Act would have led to the absurd and difficult situation
created by the courts, the Supreme Court ought to have been
guided by the spirit of substantial justice. When this is done, it
becomes clearer that there are several canons of construction
which have been developed by the courts over the years to aid in
the interpretation of statutes with a view to finding the
intendment of the legislature which enacted the statute and also
maintaining an acceptable degree of substantial justice in each
case. Canons of interpretation are to be adopted with regards to
the special circumstances of the case and the peculiarities
surrounding the statute being construed. 62 A canon of
construction must be adopted by a court of law on the basis that
it would make for the highest degree of substantial justice as
against the adoption of other canons of construction in that
particular case. 63 The court must not enslave itself to a particular
canon of construction where its application clearly occasions
gross injustice on the flimsy excuse of convention.
The literal rule of construction does not make for substantial
justice in all cases, especially when provisions to be construed
are not clear and/or unambiguous. Or, when clear provisions of
the law are mistakenly restricted in its scope and coverage, and
then based on the imputed and restricted application of it thereof
a literal construction is applied thereto. Indeed, it more often than
not occasions gross injustice in several cases wherein it has been
rigidly applied in disregard of the special circumstances of the
particular case. The liberal or golden rule of construction is more
flexible and allows for judicial activism in the interest of justice.
It maintains that where literal construction of a statute would
occasion absurdity and therefore injustice, such literal
construction must be jettisoned in favour of a more liberal
62 See Attorney General of the Federation v. Abubakar (2007) 10 NWLR

(pt. 1041) pp 171-172; John Burrows, 'The Changing Approach to the
Interpretation of Statutes' (2002) 33 Victoria University of Wellington
Law Review 981 at 989; and also William N. Eskridge, Jr., 'Dynamic
Statutory Interpretation' (1987) vol. 135 University of Pennsylvania Law
Review 1479 at 1482 where the author explains that 'Interpretation is not
mere exegesis to pinpoint historical meaning, but hermeneutics to apply
that meaning to current problems and circumstances.'
63 Amechi v. INEC (2008) 5 N.W.L.R. (pt. 1080) pp 227, 324, 344, 449, and
451.
Document in Nigeria
construction in order to avoid the absurdity and thereby create

room for substantial justice to be upheld.6 4
Alternatively, the National Assembly has been advised to amend
the relevant sections of the Evidence Act to foreclose the option
of the current interpretation trend followed by the Nigerian
courts.
64 INEC v. Musa (2003) 3 NWLR (pt.806) 72; P.D.P. v. INEC (1999) 11

NWLR(Pt.626) pp 200,254-255.

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Keywords: Evidence Act, public document,

Dr. Jirinwayo Jude Odinkonigbo, Ph.D (Osgoode, Canada), LL.M

either public or private in character. 2 The contents of documents

Section 89(c) provides that secondary evidence may be given of

2 C.C. Nweze, Contentious Issues and Responses in Contemporary

approach without unnecessary assumptions; or, altogether

To establish the thesis set out above, this paper is divided

(2003) 17 NWLR (Pt. 848) 1.

concludes that save public records kept in Nigeria of private

2.0 The Concept of Public Document under the Act

(a) Documents forming the acts or records of the

(i) The sovereign authority;

(ii) Official bodies and tribunals; and

Fidelis Nwadialo, Modern Nigerian Law of Evidence (Lagos: University

15 Sturla v. Freccia (1880) 5 App. Cas. 623 @ 643 - as cited in Fidelis

Act would lend credence to the attributes of a public document

3.0 Secondary Evidence of a Document under the Act

hearing of the suit in the trial court, the appellants sought to

4.0 Admissible Secondary Evidence of a Public Document

27 (2011) 8 NWLR (Pt. 1249) 345 C.A.

It was further held that by virtue of an equivalent of section 85 of

In my view, a correct interpretation of the decision above is to

29 Ibid, p 374, paragraphs B-D. See also PurificationTechnique Nig. Ltd.

Ors. v. Rufai Jubril& Ors. (2012) LPER-9727.

meaning of section 102 of the Act. The kind and/or form of

In Minister of Lands, Western Nigeria v. Dr. Nnamdi Azikiwe, 3 1

Also, in Onobruchere v. Esegine, 3 5 the appellants challenged the

Thus, it is now established law that in Nigeria the kind of

31 (1969) 1 All NLR 48.

5.0 Admissible Secondary Evidence of a Lost or

37 Araka v. Egbue (2003) 17 NWLR (pt. 848) 1.

the equivalent provisions of sections 89(c) and 90(1)(a) of the

Aggrieved with the ruling of the trial court, the

To arrive at the above decision, the Supreme Court relied heavily

41 Araka v. Egbue, above n 5 p 13, paragraphs B-C.

existence, condition or contents of the original copy of the

46 Araka v. Egbue, above n 5.

Let me examine a bit of the law in the area of

50 Araka v. Egbue, above n5 p 21, paragraphs B - E.

'The secondary evidence in respect to the original

(a) in paragraphs (a), (c) and (d), any

To appreciate the import of the above provision, it must be noted

'Secondary evidence may be given of the

(c) the original has been destroyed or lost

Having seen the clear provisions of sections 89(c) and 90(1)(a)

Section 89(e) provides that:

'Secondary evidence may be given of the

(e) the original is a public document

Section 89(e) is unlocked by section 90(1)(c) in the following

'The secondary evidence in respect to the original

(c) in paragraph (e) or (f), a certified

Though section 89(e) of the Act provides for a public document,

What is expected of the court is to ensure that proper foundation

destroyed or irrecoverably lost documents from the obvious