By reason of Section 89(1) of the Evidence Act 2011, there are 2 situations under which secondary evidence of a document may be given, to wit:
- When the original is shown or appears to be in possession of the opponent or
- When the original is in possession of a stranger legally bound to produce it (and when after a notice to produce has been issued to such person) fails to produce it.
For undiluted appreciation the said section 89(1) is reproduced below:
Secondary evidence may be given of the existence, condition or contents of a document when:
(a) the original is shown or appears to be in the possession or power-
(i) of the person against whom the document is sought to be proved,or
(ii) of any person legally bound to produce it, and when after the notice mentioned in section 91 such person does not produce it;
A PERSON LEGALLY BOUND TO PRODUCE A DOCUMENT
From the wording of Section 89(1)(a)(ii) of the Evidence Act 2011, it is clear from the provision of this section that there is a twin requirement to be met under sub paragraph (ii) before a secondary evidence of a document can be tendered, to wit:
- The person should be legally bound to produce such document; and
- The person failed to produce the document after a notice to produce same has been given to such person.
The law is not clear here on when a person would be “legally bound to produce” a document but according to Akintola Aguda, while expounding this provision under reference in his book “Law of Evidence in Nigeria” (2nd Edition) at page 178, he opined that:
…It should be noted that a person wishing to prove the contents to a document in the possession of a stranger can only do so by serving a subpoena on him to produce the document.
The learned author also went further at page 192 to state as follows:
It is important to know that a notice to produce does not compel the party served with such notice to produce the document. If it is desired that a party be compelled to produce a document, the proper course is to issue a summons against him to produce the document. Once he is served with the summons, he is bound, subject to certain exceptions, to produce the document.
A similar position to Aguda’s was taken by the learned author, Fidelis Nwadialo, in his book “Modern Nigerian Law of Evidence” (2nd Ed) at page 321, when he expounded the provision under reference thus:
For a document in possession of a third party the method of obtaining production is by issue of a summons on that party under certain provisions of the various High Courts and Magistrates Court
The above excerpt by the learned authors seems to suggest that issuing a subpoena duces tecum or a summons on a stranger would qualify such stranger as “legally bound to produce a document” as provided under the section under reference. However, two issues flow from this suggested position of the learned authors, to wit:
- Since subpoena and summons are by nature also a form notice to produce, why did the law prescribe a further requirement of service of a notice to produce on a person that is already legally bound to produce same by virtue of a subpoena/summons.
- The authors presented a way of ensuring the attendance of a stranger in court, but did not provide the legal effect (or next step a litigant would take) should the stranger fail to produce the document in court despite the issuance of the subpoena or summons on him?
NOTICE TO PRODUCE TO BE ISSUED ON A PERSON LEGALLY BOUND TO PRODUCE DOCUMENT
As highlighted above, with the similar positions taken by the learned authors, one would then be tempted to ask why the draftsman laid down a conjunctive requirement of further issuing a notice to produce as prescribed by sub paragraph (ii) of 89(1)(a). This query is based on the premise that a Subpoena, being a notice by itself, should ordinarily suffice as a notice to produce a document in possession of any person but the draftsman in his wisdom, still required the issuance of a notice to produce on the person legally bound to produce a document.
This position assumes more credence when Section 89(a) is read together with Section 91 of the Evidence Act, which shows that the draftsman’s requirement in Section 89(a) would be satisfied once any form of notice to produce a document is issued (insofar as such notice is reasonable). The said Section 91 of the Evidence Act provides as follows:
Secondary evidence of the contents of the documents referred to in section 89(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produce it as is prescribed by law; and if no notice to produce is prescribed by law, then such notice as the court considers reasonable in the circumstances of the case.
Similarly, the above submission on this point was succinctly supported by the learned authors of Sakar’s Law of Evidence (16th Ed) at P. 1220 when they stated thus,
If the words “legally bound to produce it” are to be taken literally as they stand, there would be no need to take out even any summons or to exhaust all the processes available in the C P Code to compel production, as secondary evidence becomes admissible immediately after it is not produced by the witness after notice. This can hardly be the meaning or intention of the clause.
From the foregoing, it seems clear that the refrain “person legally bound to produce” does not necessarily mean a person whom a subpoena duces tecum or summons has been issued upon. In the circumstances, it would be safe to argue that a “person legally bound to produce a document” is a person who cannot lawfully refuse to produce the document or a person who is compellable under the law to produce such document.
WHEN SECONDARY EVIDENCE CAN BE ADMISSIBLE UNDER SECTION 89(1)(A)(II)
Suffice it to say that for section 89(1)(a)(ii) to be satisfied, the document to be tendered must first be shown to be or likely to be in the possession of the stranger who cannot lawfully refuse to produce (whether on the ground of privilege, immunity etc) and a notice to produce must have been served on the stranger.
It is safe to conclude therefore that once foundation can be laid to show that the original of a document is in the possession or likely to be in the possession of a stranger legally bound to produce same (and a notice to produce has been issued on such stranger) but has failed to produce original, the law would permit reliance on the content of a secondary evidence of the original.
If the above conclusion is correct, it is then inferable that where a stranger is not compellable (ie not legally bound to produce), his refusal to produce a document in his possession despite issuance of a subpoena, summons or notice to produce, would not make reliance on the content of a secondary evidence permissible in law. This position under the Nigerian Evidence Act is in direct contrast to the position under English law. The English law position was stated in Phipson on Evidence (13th Ed) page 899 para 36-28
When a stranger is compellable by law to produce, on subpoena, an original document in his possession, but fails to do so, secondary evidence of its contents cannot be given, although the witness will be punishable for disobedience. When, however, he is not compellable by law to produce it, and refuses to produce it either when summoned as a witness with a subpoena duces tecum, or when sworn as a witness without a subpoena but admitting that he has the document in court, secondary evidence of its contents may be given
As can be gleaned from the foregoing, the legal incidences of the refusal of a person “legally bound to produce a document” to produce same after a notice has been issued on him under the Evidence Act 2011 seem to be in direct contrast with what obtains under English law as the former would only permit reliance on a secondary evidence of a document when a notice to produce has been issued to a stranger that is “legally bound to produce” but has however refused to produce same.
The confusion that has been created by this section was elucidated by the respected authors of Sakar’s Law of Evidence (16th Ed) P. 1218-19 when the learned authors expounded Sec. 65 cl (a) (ii) of the Indian Evidence Act which is in pari materia to Sec. 89(1)(ii) of the Nigerian Evidence Act 2011. In their book, the learned authors stated thus:
The interpretation of this part of cl (a) is not free from difficulty and commentators have speculated upon its true intention, whatever the wording may be, it purports to provide for a case where the original is in possession of “any person legally bound to produce” it. As to the later, a witness may be, justified in refusing to produce a document where it is, eg, one on which he has a lien for money lent, or is a title-deed, or an incriminating document, or one which he holds as a trustee, solicitor or mortgagee for another, and which that other would himself be justified in withholding. (Phip 6th Ed, p 546; see ss 130, 131 and also ss 122-129). In such cases a witness is not compellable by law to produce the document. If, on the other hand, a document is in possession of a person (not a party) who has no privilege of the above kind to withhold it and who is therefore “legally bound to produce it”, a party would under the plain words of cl(a) be entitled to give secondary evidence straightway when the stranger fails to produce the document after notice under s. 66 without even having to take out summons or other compulsory processes under Or 16, C P Code. That would be strange, although that is the result if the clause is literally interpreted. Is that the meaning of the clause and does it apply only to such a case?
The learned authors then further elucidated the position under English law. In their words,
The English law on which the section is based is otherwise. When the stranger is compellable by law to produce (ie, legally bound to produce) on subpoena an original document in his possession, but fails to do so, secondary evidence of its contents cannot be given, although the witness will be punishable for disobedience [R v. Llanfaethly, 2 E & B 940]. When however, he is not compellable by law to produce, (ie, not legally bound to produce) on the ground of some kind of privilege stated earlier, and refuses to do so when summoned as a witness, secondary evidence of its contents may be given [Mills v. Oddy 6 C & P 728]. Mere refusal to produce the document will not, therefore, let in secondary evidence thereof; but the witness must also be justified in his refusal, for otherwise the party will have no remedy, except as against him [R v. Llanfaethly, sup; Phip 11th Ed, p 755; Tay s 457]. “When the original is in the possession of a person who, by virtue of privilege or otherwise, is not compellable to produce it [Hibberd v. Knight, 1848, 2 Exch 11; Newton v. Chaplin, 1850, 10 CB 356], secondary evidence is admissible, provided that such person has been served with a notice to produce or subpoena duces tecum and expressly claims his privilege “[Lloyd v. Mostyn, 1842, 10 M & W 476; Hals, 3rd Ed Vol 15 para 647]. Wigmore says that “if after service of subpoena the possessor is recalcitrant and refuses to obey, the proponent should be excused from production” (Wig s 1212) and is of the opinion that the ruling in R v. Llanfaethly is absurd and would not be followed today [Wig s 1212, p 786, fn 7)
It has been argued by legal pundits that the reasonable explanation that can be given to the confusion raised by this provision is that the word “not” has been inadvertently omitted by the draftsman. It was therefore suggested that the difficulty in construing this section can be removed by an amendment. This position was well articulated by the learned authors in Sakar’s Law of Evidence (16th Ed) P. 1219
Markby is of the opinion that the intention was to reproduce the English rule and what was probably meant was “not legally bound to produce it”, the word “not” being inadvertently omitted. This would make the meaning quite intelligible (Markby, p 158). Cunningham also says that the language of the section is open to criticism and according to one construction it would follow that any refusal to produce should entail the admission of secondary evidence. According to the other construction in accordance with English law, the word “not” must have been omitted. The section is not clear as to the cases where a witness fails to produce a document without legal justification and where he lawfully refuses to produce on the ground of privilege. He says that the difficulty in construing the section can only be removed by an amendment which shall distinguish between parties and third persons and privileged and unprivileged documents (Cunn 11th Ed, pp 154-55). Field also comments that the wording of cl (a) has given rise to considerable doubt and says that when a person is justified in objecting to produce a document on the ground of privilege, the courts will admit secondary evidence on the general principles of English law (Field p 288)
In the premises, one can conclude that there is an apparent ambiguity in the provisions of Section 89(a), particularly when considered in the light of English law which forms part of our body of laws. Pending any amendment to clarify the confusion, one way out of the legal confusion will be to interpret “person legally bound to produce a document” in the extensive sense that every person is legally bound to produce a document until an objection showing the contrary (ie privilege etc) is upheld by the court.