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March 16, 2018 11:41 am
Are Photocopies Of Certified True Copies Of Public Documents Admissible In Evidence? – Miracle Akusobi
A Certified True Copy is a copy (often a photocopy) of a public document that has on it an endorsement or certificate that it is a true copy of the primary document. It may also be defined as a secondary evidence in a certified form, it is not a primary evidence but a reproduced copy of the original document.
In the case of KERRI v. EZUNAKA BROS. ENT. LTD (2013) LPELR – 12399, the Court of Appeal defined a Certified True Copy “as a copy of a document or record signed and certified by the officer to whose custody the original is entrusted.
Where a public document is duly certified as prescribed by Section 89 of the Evidence Act, 2011, it raises a rebuttable presumption of genuineness under Section 146(1) of the Evidence Act, 2011. The essence of certification of a public document is to show that the contents of the document are the same with the original. See the cases of OWOR v. CHRISTOPHER & ANOR (2008) LPELR – 4815, OKADIGHO & ORS v. OJECHI & ORS (2011) LPELR 4687.
The procedure for certification of a public document is fixed by law. In the case of TABIK INVESTMENT LTD v. GUARANTY TRUST BANK PLC (2011) 17 NWLR (PT. 1276) 240, the Supreme Court emphatically held that before a public document can be tendered and accepted by the court, it must be certified. A public document is certified if:
1. It was paid for
2. There is an endorsement or certificate that it is a true copy of the original
3. The endorsement or certificate is dated and signed by the officer responsible for certification with his name and official tittle
4. It is sealed in cases in which the officer is entitled by law to use a seal. SEE: ANAMBRA STATE GOVERNMENT v. GEMEX INTERNATIONAL LTD (2012) 1 NWLR (PT 1281) 333 AT 359.
It is imperative to note that a public document may be proved by producing the original documents themselves. In the recent case of KASSIM v. STATE (2017) LPELR-42586, the Supreme court held that Originals of public documents are admissible in Evidence. In the said case, Per Kekere Ekun J.S.C. says thus;
“Now, what really is the essence of the demand for a certified true copy of a public document? I think, and in agreement with ADEKEYE JSC, in GODWILL & TRUST INVESTMENT LIMITED v. WITT & BUSH LIMITED (2011) 8 NWRL, 500; (2011) LPELR-1333 (SC), the essence of demanding for a certified copy of a public document is the assurance of the authenticity of the document vis-à-vis the original. And so why go for that assurance in the certified true copy vis-à-vis the original, when the original is available? And so, when the cap is in the market, the head is also in the market; there is no further need to take the cap home from the market in order to test it on the head. I, therefore, agree with the court below that where the original copy of a document is available, it is admissible without the requirement of certification”
Flowing from the above authorities, it is discernible that the only categories of public documents that are admissible in evidence are either the original documents themselves or the certified true copies. To this end, where the Originals or the Certified True Copies are unavailable, can photocopies of the Certified True Copies of public documents admissible in Evidence?
The admissibility of a photocopy of a Certified True Copy of a Public document is one evidential rule that has led a lot of controversy, argument, conflicting opinions and decisions by judges, Law Academics, Lawyers and scholars.
In 1961, the Supreme Court, in the case of OMONIYI v.OMOTOSHO (1961) 1 ALL NLR 304 held that a photocopy of a Certified True Copy of a public document is not admissible in evidence. The above decision was reiterated and repeated in 1969 in the case of MINISTER OF LANDS v. WESTERN NIG v. DR. NNAMDI AZIKIWE (1969) 1 ALL NLR 49.
However in 1978, the court, in the case of ESSO WEST AFRICA INC v. ALLI (1978) NMLR 414, held that a photocopy of a certified true copy of a public document is admissible in evidence once the document of which it is a photocopy is an authentic document of a court duly certified as a true copy of the original issued. Perhaps, in OJO v. ADEJOBI (1978) 3 S.C. 65, the Supreme Court held that a photocopy of a Certified True copy of a public document is inadmissible.
One may argue that decision of the Supreme Court in OMONIYI v. OMOTOSHO, and MINISTER OF LANDS v AZIKIWE, OJO v. ADEJOBI are old, archaic and Old-fashioned. However, as a matter of law, a case which has survived the test of judicial precedent is recognized stable, if decided by the highest court of the land, and will receive the adoration of the lower court until overruled or overturned by the highest court. In the case of SHELL CO LTD v. NWAORLU (1991) 3 NWLR 491, the court of appeal while recognizing inviolable doctrine of stare decisis says thus ” we, by the impregnable doctrine of stare decisis are bound by the decision of the Supreme Court in OMONIYI v. OMOTOSHO”.
In 1988, the Court of Appeal, in the case of DAILY TIMES OF NIG v. CHIEF F.R.A. WILLIAMS (1988) 4 NWLR (PT 36) 526 held that photocopies of the certified true copies of public documents are admissible in evidence.
In 1996, the Supreme Court, in the case of JADESIMI v OKOTIE EBO (1996) 2 NWLR (PT.429) 129 held that photocopies of the Certified true copies of public documents are inadmissible in evidence.
However, in IHEONU v. OBIUKWU (1994) 1 NWLR (PT 322) 322 AT 514, and I.M.B. (NIG) LTD v. DABIRI (1998) 1 NWLR (533) 284, the court held thus ” a photocopy of a Certified true copy which on the face of it shows that it is Certified and duly signed is admissible in evidence.
Irrespective of the conflicting decisions of courts in the above cited cases, it maybe suggested that where a photocopy of a Certified true copy of a public document is re-certified, it maybe admissible in evidence. In the case of ITEOGU v. LPDC (2009) 17 NWLR (PT. 848) 1, the Supreme Court held thus ” A photocopy of a Certified true copy of a public document must be re-certified as a condition for its admissibility, this is because in the age of sophisticated technology, photo tricks manipulation cannot be rule out and evidence produce in the context of Section 97 (2) (a) of the Evidence Act could be authentic “. See also the case of OGBORU v. UDUAH (2011) 2 NWLR (PT. 1232) 538.
However, In the case of DANIEL TAYAR TRANS. ENT. LTD v BUSARI, it was held that a photocopy of a certified copy of a public document is admissible in evidence and needs no further certification. See also IMB (NIG) LTD v. DABRI (1998) NWLR (PT. 533) 284.
As if it is not enough, in the case of OGUNLEYE v. AINA (2011) 3 NWLR (PT. 1235) 479, the court of appeal in Ratio 4 held thus ” the only categories of public documents that are admissible in evidence are either the original documents themselves, and in the absence of such original documents, their certified copies and no other”.
In Ratio 5 the court held thus “Photocopies of certified true copies of public documents are inadmissible in evidence”
Further, in Ratio 6, the court said there is an exception to Ratio 4 & 5. In the said ratio, the court held thus “there are exceptions to the general rule on the admissibilities of photocopies of Certified true copies, one of which is that if the photocopy is inadmissible under certain conditions but was admissible without objection, then it becomes admissible upon which the court can act.
Finally, the writer is of the opinion that this controversy will continue to rage just like the controversy in Section 251 of the constitution on jurisdiction of the Federal High Court and State High Court, until the legal status of photocopies of the Certified true copies of public documents is radically changed by the court. I have had course on several occasions to know the essence of re-certifying a photocopy of a Certified true copy of a public document when the certification is seeable, ascertainable and visible on the face of the said photocopy. I would suggest (and I stand yo be corrected) that certified true copies should be deemed to be originals so that when the original certified documents are nowhere to be found, Courts may admit photocopies of the Certified documents with verifiable and authentic certification visible and clearly seeable on the face of the photocopy after the party might have laid a foundation on the whereabout of the Certified documents.
By: Miracle Akusobi, Esq.
