primary & secondary evidence

Primary documentary evidence means the document produced before the court in its original form. It consist of the following:

Document executed in several part are original as each part constitute primary evidence of the document. For instance duplicate copy document.

Document executed in counterpart with each counterpart executed by one or some of the parties, such counterpart will constitute primary evidence against the parties executing it.

Also, all document made by one uniform process whether of electronical or mechanical process will constitute primary evidence of the content of the rest. For instance, documents made through printing, lithography, photography are original document. Section 86(1-4) Evidence Act, 2011. Esso (WA) Ltd. V. Oladuti (1968) NWLR 353; Abed Brothers Ltd. Niger Insurance (1976) NNLR 1. However, document made from a common original does not constitute primary evidence of the content of the original.

Where a document is not in its original form, same cannot be tendered as a primary evidence in court. At best, it is a secondary evidence. Secondary evidence are in the following instances:

Where the documents are certified copies.

Where the documents are copies made from the original either by mechanical or electronic process which in themselves ensure the accuracy of the copies made.

Where the documents are copies made from or compared with the original.

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

Oral testimony regarding the contents of a document given by the party who has seen the content constitutes secondary evidence. Section 87 Evidence Act, 2011. Nwadike V. Ibekwe (1987) 4 NWLR (Pt. 650 390; Edokpolar & Co. Ltd. Sam Edo Wire Ltd (1989) 4 NWLR (Pt. 116) 473.

Apparently, there is a great deal of difference in Nigeria law between a duplicate copy of a document and a photocopy of the same document. A duplicate copy of a document is produced same time and by same process as the first copy which may call original copy. A photocopy document cannot be admitted as primary evidence in court because it is made at different time from when the original was made, and by a different process, possibly by different persons. Because a document is made from the original does not by that reason alone make the said document an original copy. However, a duplicate document constitutes a primary evidence of the content of the rest of document made together with it. This is because is not a creation of another. Jacob V. A.G Akwa-Ibom State (2002) 7 NWLR (Pt. 765) 18; Nwobodo V. Onoh (1984) 1 SCNL 1

The content of a document may be proved by secondary evidence in the following cases: Where the original document is shown or appear to be in the possession or power of the person against whom the document is sought to be proved or anybody legally bound to produce it and when after a notice to produce have been served on him, he still refuse to produce it;

When the existence or content of the original document have been proved to be admitted in writing by the person against whom it is sought to be proved or by his representative;

Where the original document has been destroyed or lost and after all possible search it still wasn’t found;

Where the original is such that it is not easily moveable;

Where the original is a public document or a document of which a certified copy is permitted to be given in evidence by law;

When the original consist of numerous account or other document which cannot be conveniently be examined in court and the facts to be proved is the general result of the whole collection e.g ledger and accounting book;

Where the document is an entry in the bankers book. Section 89 Evidence Act, 2011. Jacob v. A.G. Akwa Ibom State (2002) FWLR (Pt. 86) 578 C.A; Nzekwu & Ors v. Nzekwu & Ors (1989) 1 NSCC 881 SC.

Yes, when the document is an entry in a banker’s book, the copies cannot be received as evidence unless it is first proved: That the book in which the entries copied were made was at the time of making one of the ordinary books of the bank. That the entry was made in the usual and ordinary course of business.

That the book is in custody and control of the bank.

That the copy has been examined with the original entry.

Section 90(1) Evidence Act, 2011 Ogboru v. Uduaghan (2011) 2 NWLR (Pt. 1232) 538; IBWA Ltd. v. Imano (Nig.) 2001 FWLR (Pt. 44) 421 SC; Jwan v Ecobank Nig Plc & anor (2020) HELAR ratio 2