An analysis of the role of attorney general in the implementation of freedom of information Act 2011

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ABSTRACT

This project provided a critical conceptual discourse into the Admissibility of Documentary Evidence in Nigerian Court. It appraised the bases for the admissibility of documentary evidence, evidence, relevance and conditions for the admissibility of secondary evidence, public document, proof of documentary evidence, custody and production of public documents, proof of execution of documents, admissibility of statements made in computers, and conditions for the admissibility of documentary evidence as to fact in issue. It also appraised the rules on admissibility of documentary evidence under the Nigerian Law to ascertain what factors that determine the admissibility and inadmissibility of documentary evidence and it examined the extent to which computer generated evidence is made part of admissible documentary evidence under the Evidence Act. Evidence is the cornerstone of litigation and indispensable for a fair justice system in Nigeria. This research therefore aimed at bringing out issues faced by the Lawyers, Courts, theorists and Students of Law relating to the admissibility of documentary evidence; solving problems faced by Students of Law and Lawyers on issues of proper foundation to be laid and the mode of tendering the documentary evidence and principally, recommending areas and manner of legal reform as to the admissibility of documentary evidence by making an exposition on a very fundamental rule on documentary evidence. The separation of section 89 and 90 of the Evidence Act and the alteration of sections in 1990 Evidence Act which has the same principles under 2011 Evidence Act, made comprehension and interpretation of above sections difficult. The five subsections in section 83 constitute a sort of nightmare to many Students of Law and even the Lawyers sometimes are confused as to the application of its provisions. Making it worse is the use of the words „provided‟, „except‟, and „unless‟. Also, in addition to the issues raised above, the failure of the Act in not defining the nature of electronic signature compounded the confusion, difficulties and obscurity of meaning of evidence it sought to enshrine, legislate or enforce and so we can only conclude that the provisions of section 83 are cumbersome and they ordinarily portend challenges to understanding and thus interpretation and would need material revision and redrafting. The legal research methodology adopted in collecting information is the doctrinal method. The doctrinal research is priori research method which involves research in text books, statute and cases. The findings of the study significantly included the difficulty which the separation of S. 89 and 90 Evidence Act posed to Students of Law, and the absence of the definition of the nature of electronic signature. It is therefore recommended that there is immediate need for legislative reform to redress the issues for proper drafting, interpretation and understanding for-instance the issues relating to the use of simple English to replace the words „provided‟, „except‟, and „unless‟ for easy understanding. The need for legislative amendment of S. 89 and 90 which was separated, should be redrafted under one section for easy interpretation and understanding and the amendment of Section 83(4) to provide for the nature of electronic signature for its admissibility purposes.

CHAPTER ONE

INTRODUCTION

1.1 Background of The Study

Documentary evidence is any evidence that is, or can be, introduced at a trial in the form of documents, as distinguished from oral testimony. Documentary evidence is most widely understood to refer to writings on paper (such as an invoice, a contract or a will), but the term can also apply to any media by which information can be preserved, such as photographs; a medium that needs a mechanical device to be viewed, such as a tape recording or film; and a printed form of digital evidence, such as emails, spreadsheets, etc.

Normally, before documentary evidence is admissible as evidence, it must be proved by other evidence from a witness that the document is genuine, called “laying a foundation”.

A piece of evidence is not documentary evidence if it is presented for some purpose other than the examination of the contents of the document. For example, if a blood-spattered letter is introduced solely to show that the defendant stabbed the author of the letter from behind as it was being written, then the evidence is physical evidence, not documentary evidence. However, a film of the murder taking place would be documentary evidence (just as a written description of the event from an eyewitness). If the content of that same letter is then introduced to show the motive for the murder, then the evidence would be both physical and documentary.

Documentary evidence is subject to specific forms of authentication, usually through the testimony of an eyewitness to the execution of the document, or to the testimony of a witness able to identify the e handwriting of the purported author. Documentary evidence is also subject to the best evidence rule, which requires that the original document be produced unless there is a good reason not to do so.[1]

1.2 Statement of Problem

Considering the concept of document generally as contained in Section 258 of the Evidence Act which explicitly mentioned that:

“Document” include books, maps, plans, 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 that matter”

It is primary and crucial that a document used in litigation must not only be relevant, it should also be admissible. Thus, if a party wants to rely on the contents of a document to establish his case, it is his duty to bring them to notice of the court; and as a general rule he must produce the original of the document before the court.

Nevertheless, in certain circumstances some obstacles do affect the admissibility of document to be tendered as evidence in the court of Law. Such issues include, lost of or destruction of paper documents, alteration, forgery of documents and sometimes documents are erroneously admitted by the court in the course of proceedings as well as other sundry issues relating to documentary evidence.

There are the major problems that has to do with the admissibility of documentary evidence in the court of Law under the Law of Evidence in Nigeria i.e. striking the balance between the documents that are admissible and these that are not admissible as well as those that are become admissible in view of others are reliable evidence in the court of Law under Nigeria Law of Evidence.

1.3 Objective of the Study

The objective of this research is to portray the admissibility of documentary evidence under the Nigeria Law of Evidence which largely depend on the case laws and comments of erudite legal luminaries. And to some certain extent look at general concept of evidence, presumption relating to documents and exclusion of oral evidence by documentary evidence.

1.4 Significance of the Study

This research work serves as reference to other works of relevant field for incoming posterity. It will serve as medium public and private documents, the extent and limitation of the admissibility of such documents under Nigeria Law of Evidence.

In view of the above, the research work will serve as a means of understanding the concept of document as well as its admissibility under the Nigeria Law of Evidence, which include the extent and limitations under Law, so that possible solutions and corrective measures will be proffered in tendering an or considering documents as an evidence.

1.5 Methodology

The research methodology used is pure doctrinal researches conducted in the library and internet. By this process the law reports of the superior courts of records, journals, national newspaper as well as renounced scholar Articles and paper presentation were consulted in my effort to state clearly the admissibility of documentary audience under the law of evidence in Nigeria.

1.6 Scope of the Study

The scope of this work is limited to the admissibility of documentary evidence under Law of Evidence in Nigeria. Nevertheless, this work will go on in a nutshell to have an overview of the concept of evidence generally; because one can only be successful in writing on admissibility of documentary evidence if, he highlighted the general concept of evidence in Law.

Secondly, recent judgement of the superior courts of record in Nigeria as well as textbooks of the renounced lawyers and erudite judges also helped to discover the problems and solution in the process of writings.

1.7 Organization of the Study

This research work is divided in five chapters. Chapter one (1) consist of the introduction, statement of problem, objective of the study, significance of the study, methodology, scope of the study, organisation of the study and literature review.

Chapter two (2) talks about the meaning of the concept Document; meaning of documentary evidence, types of documentary evidence, public and private document, general provision on documentary evidence and its admissibility in law as well as relevancy of documentary evidence.

Chapter three (3) where the main work begin, looks at the the evidence act 2011- moving with the times and electronically generated evidence.

Chapter Four provides a critical appraisal of the rules on admissibility of documentary evidence as to fact in issue under Sections 83 and admissibility of statements in documents produced by computers under Sections 84 of the Evidence Act 2011 which 26 includes admissibility of document made by a person in any proceeding, if the maker of the document had personal knowledge of the matters dealt with by the statement, where the document forms part of the record purporting to be continuous record, if the maker of the statement is called as a witness in the proceeding, the discretion of the Court to admit a statement made by the maker in any proceeding, the inadmissibility of the document made an interested person when the proceeding is pending or anticipated, admissibility of document signed or initialed by the maker, basis for admissibility of certificates of a registered medical practitioner, admissibility of computer generated document and conditions to be laid, admissibility of statement produced from different or combination of computers, basis for admissibility of certificate signed by a person in a responsible position, and conditions to be laid for an information to be duly supplied or produced by computer.

While, chapter five (5) summarised everything in conclusion, recommendation and bibliography.

1.8 Literature Review

The importance of the work has been intensified and brought to bare mainly in pagesfeaturing the practical application of the rules relating to documentary evidence in particular and its relevancy and admissibility of evidence in general.

Although, there is no single textbook on the topic of this thesis, there are related articleswritten by lawyers and academics whose style and manner of approach will be explainedbelow.

AfeBabalola[2] in his book :Law and Practice of Evidence in Nigeria” stated that a billon information technology as well as the Evidence Bill 1998 which are still both beforethe National Assembly have hardly been attended to. On the other hand, some countriessuch as UK and USA have enacted statutes reforming their Laws, particularly the law ofEvidence to take benefit of the advances in information, technology. It must be notedhowever that reform of the law of Evidence has been slow.

Also, YemiOsinbanjo[3]believes amongst other things that computer printouts are notoriginal. He also dispute with some English decisions even based on statutory provisionsthat computer documentary evidence is “real evidence”. The learned author [4]also arguesthat those computer printouts do not qualify as documentary evidence under section  (formerly section 90) of the Evidence Act. He concludes that unless the Evidence Act isamended, it will be difficult for courts in Nigeria to admit computer and electronicallydocumentary evidence in Nigeria.

Amupitan J[5] in his article “Admissibility of Electronically Generated Evidence” statedthat the Nigeria courts and the world over should at least give liberal interpretation to theadmissibility of electronic evidence if the law is to be relevant and useful at this computerage of information technology in order to enhance and strengthen judicial activism.Also, Fidelis Nwadialo[6] seeks to explain why he had decided not to treat computergenerated evidence. He says he deliberately did this because there is no Nigeria law yeton the subject to have it included in a book on Nigeria law of Evidence, firmly submittingthat any pronouncement on it will either amount to a suggestion or an opinion moresuited for more journals as opposed to formal textbooks on law of Evidence. yet, whilecommenting on the “Sources of Nigeria Law of Evidence,” the learned author[7] is of theview, having regard to section 5(a) of the Evidence Act and decision of the West AfricanCourt of Appeal, WACA[8] and the Federal Supreme Court[9] that “any Evidence whichwould have been admissible under the common law had the Act not been passed, will stillbe admissible.

Although these writers have voiced the opinion on documentary evidence,they have not gone in depth on the topic.


[1] https://en.m.wikipedia.org/wiki/Documentary_evidence

[2]Chief AfeBabalola, a Senior Advocate of Nigeria and is book “Law and Practice Evidence in Nigeria

2001”

[3]YemiOsinbanjo; Admissibility of Computer Generated Evidence under Nigeria Law. (1990) jus, vol .1

no 1. p. 260.

[4]Ibid at pages 253 – 255.

[5]J. Amupitan lecture notes on Law of Evidence. A University of Jos Lecturer.

[6]Nwadialo F, Modern Nigeria Law of Evidence, 2nd Edition 1999.

[7]Ibid at page 17

[8]Onyeanwusi V Okpukpara (1953) 14 WACA 311.

[9]R. V Itule (1961) 1 ALL NLR 462.

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