By Geraldine C. Nzulumike, MCIArb
INTRODUCTION
In legal proceedings, documentary evidence often plays a crucial role. For public documents in Nigeria, the Evidence Act 2011 outlines specific procedures for their admissibility. This article outlines the requirements for certifying public documents and examines the legal implications of submitting uncertified or improperly certified documents, particularly in the context of affidavit evidence.
WHAT IS A PUBLIC DOCUMENT
A public document is any record created, maintained or preserved for the purpose of being accessed, used, or inspected by members of the public, particularly in matters of public interest.
Under the Evidence Act 2011, public documents include those made by public officers in the course of their official duties, as well as documents that form part of public records kept in Nigeria. Examples of public documents include court judgments, government records, corporate filings with the Corporate Affairs Commission (CAC), and land documents. Section 102 of the Evidence Act 2011 provides that the following documents are public documents:
- documents forming the official acts or records of the official acts of –
- the sovereign authority,
- official bodies and tribunals or
- public officers, legislative, judicial and executive, whether of Nigeria or elsewhere, and
- public records kept in Nigeria of private documents.
It should be noted that the original copy of a public document is admissible in evidence and does not require certification. This Supreme Court decision held in Kassim v State (2017) LPELR-42586(SC)was reaffirmed in Owakah v R.S.H. P.D.A. (2022) 12 NWLR (Pt. 1845) 463 SC, and more recently in Gusau v Lawal (2023) 10 NWLR (Pt. 1892) 297.
WHO CAN CERTIFY PUBLIC DOCUMENTS
By Section 104 of the Evidence Act 2011, the authority to certify a public document rests exclusively with a public officer who, by virtue of their official duties, is authorized to issue such certified copies. The Supreme Court affirmed this position in Goodwill & Trust Investment Ltd v Umeh (2011) 8 NWLR (Pt. 1250) 500,where it held that the power to certify documents is not a right available to just anyone.
Furthermore, Section 104(3) of the Evidence Act 2011 provides that a public officer authorized to issue copies of such documents in the ordinary course of their official duties is considered to have custody of those documents.
HOW ARE PUBLIC DOCUMENTS CERTIFIED
To certify a public document in Nigeria in accordance with Section 104(1) and (2) of the Evidence Act 2011, the person requesting a copy must first pay the prescribed legal fees. Thereafter, the issuing public officer shall endorse the document with the words “Certified True Copy,” date it, and sign it, clearly stating their name and official title. Where the officer is legally authorized to use a seal, the document must also be sealed.
Under Nigerian law, public documents must be duly certified before they can be admitted as secondary evidence, in accordance with the provisions of Sections 89 and 90 of the Evidence Act 2011. However, certification is not required where the original document is tendered.
It is worth mentioning that a document tendered through a witness who is not its maker will lack evidential value unless the proper legal foundation for its admissibility is established. This was the decision of the Supreme Court in Uzodinma v Ihedioha (2020) 5 NWLR (Pt. 1718) 529.
Legal Framework: Sections 102, 104, 105 and 106 of the Evidence Act 2011
Sections 102, 104, 105 and 106 of the Evidence Act 2011 govern the certification and admissibility of public documents in Nigeria. These provisions set out what constitutes a public document, who can certify it, how it should be certified, and the evidentiary value of such certification.
Section 102 has already been considered in this document. Section 104 is the core provision governing how public documents are certified, and it provides that:
- Only a public officer who has custody of an original public document is authorized to certify it.
- The certification must:
- Be written at the foot of the copy of the document.
- State that the document is a true copy of the original.
- Be signed and dated by the public officer certifying the document.
- Include the name and official title of the certifying officer.
- Be sealed, where the public officer is authorized by law to use a seal, and
- Be endorsed only after payment of the prescribed legal fees.
A certified true copy of a document that does not comply with these requirements will be deemed defective and inadmissible in court.
Section 105 provides for proof of documents by production of certified copies. The effect of this section is that a certified true copy of a public document issued in accordance with Section 104 has the same legal effect as the original document for the purpose of admissibility in evidence. It can be inferred from the provision of Section 105 that parties can tender certified copies of a document in lieu of the original, particularly where the original is in official custody and/or not easily accessible.
Section 106 provides for the proof of other official documents, particularly documents forming part of legislative acts and foreign public documents.
Public documents forming the acts of legislative and local government authorities in Nigeria, such as Acts of the National Assembly, proceedings of the House of Representatives or a State House of Assembly, and official records from Local Government Councils, are generally proved by producing copies printed by order of the government.
Public documents originating outside Nigeria, such as foreign court judgments, public records, or official certificates, may be admitted in Nigerian courts if certified by an authorised officer in the foreign country and authenticated through the appropriate diplomatic or consular channels, or in any other manner prescribed by law.
Case Law on Certification and Admissibility of Public Documents
Nigerian courts have strictly upheld the application of the certification requirements set out in the Evidence Act. In Tabik Invest. Ltd. v G.T.B. Plc (2011) 17 NWLR) (Pt. 1276) 240 at 256, the Supreme Court interpreted Section 111(1) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria 1990, as imposing mandatory duties on both the applicant requesting a public document and the public officer issuing it. Failure to meet these requirements renders the document inadmissible.
Similarly, in S.G. (Nig) Ltd. v. Galmas Int’l Ltd. (2010) 4 NWLR (Pt. 1184) 361 CA, the Court of Appeal ruled that a copy of a court ruling (Exhibit A) was inadmissible as evidence because it did comply with the requirements of Section 111(1) of the Evidence Act (Cap. 112 LFN 1990), now re-enacted as Section 104 of the Evidence Act 2011. The document was not properly certified as it lacked the name and official title of the certifying officer and did not include the required certification endorsement.
In Agbai v. I.N.E.C. (2008) 14 NWLR (Pt. 1108) 417, the court held that a copy of a press release marked “Certified True Copy” but lacking the date, name, and title of the officer who made the certification was not properly certified and therefore inadmissible as evidence. The court has also restated these principles in Jimoh v Minister, FCT (2019) 5 NWLR (Pt. 1664) 45 at 67; and Oyeniyi v Bukoye (2013) All FWLR (Pt. 694) at 85-87.
ADMISSIBILITY OF UNCERTIFIED PUBLIC DOCUMENTS EXHIBITED WITH AFFIDAVITS
The court had varying decisions on whether uncertified public documents attached to affidavits are admissible. The Evidence Act 2011 provides that copies of public documents must be duly certified before they can be admitted as evidence. However, the Supreme Court has clarified the issue by carving out a distinct approach when such documents are exhibited with affidavits.
In Aondoakaa v Obot & Anor (2021) LPELR-56605(SC),the Supreme Court clarified that uncertified public documents attached to affidavits are admissible. The court held that: “The point has to be made that copies of public documents attached to an affidavit as exhibits need not be certified true copies because the documents already form part of the evidence adduced by the deponent before the Court and are available to the Court to use once it is satisfied that they are credible.”
Also, the Legal Practitioners Disciplinary Committee of the Body of Benchers (holden at Abuja) in the matter of Nwosueke v Ode (2024) 17 NWLR (Pt. 1968) 640 explicitly stated that “public documents attached to affidavits require no certification.” In Edun v Afuape & Ors (2023) LPELR-60018(CA), the court’s decision clarified that there is a distinction between averment of facts in pleadings and averment of facts contained in an affidavit. Consequently, the formality of certification for admissibility (if required), in the latter case, is dispensed with.
This position is consistent with earlier rulings such as British American Tobacco Nig. Ltd. vs. International Tobacco Co. Plc. (2013) 2 NWLR Pt. 1339, Pg. 493 at 520 – 521,where the Court of Appeal held: “Public documents exhibited as secondary copies in affidavit evidence cannot necessarily be certified true copies and that document exhibited to an affidavit is already an exhibit before the Court, being part of the affidavit evidence which a Court is entitled to look at, and use.”
See also the cases of Adejumo v Governor of Lagos State (1970) All NLR 187; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 608 at 735; Jukok International Ltd v. Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55; Ezechukwu v Onwuka (2016) 5 NWLR (Pt. 1506) 529 SC; Boko v. Nungwa & Ors (2018) LPELR-45890(CA); and Ayabam v C.O.P. Benue State (2019) LPELR-47283(CA).
CONCLUSION
The certification and admissibility of public documents under Nigerian law remain subject to the Evidence Act, which is supported by evolving judicial interpretations of the Act. Sections 102, 104, 105, and 106 of the Evidence Act 2011 provide the legal foundation for identifying, certifying, and tendering public documents in court.
Central to this framework is Section 104, which outlines the mandatory requirements for the valid certification of public documents. The courts have consistently held that failure to comply with these requirements renders a certified true copy of a public document inadmissible.
However, Nigerian case law has developed a more flexible approach to uncertified public documents attached to affidavit evidence. While the general rule mandates certification of public documents, the Courts have in recent judgments recognised that uncertified public documents attached to affidavits are admissible, provided they are credible and form part of the evidence already before the court.
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