Documentary Evidence

Any document which is presented and allowed as evidence in a trial or hearing as distinguished from oral testimony is documentary evidence. It could be written documents, photographs, videos, sound recording and printed e-mails or web pages. It is admitted at trials as exhibits. In order to be admitted as an exhibit, the party presenting the document must first by a foundation that explains what the evidence is, where it came from. Foundation is layed through testimony by a witness familiar with the content of the document.
Section 91(1) of the evidence Act 2011 provides that in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall on production of the original document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact, if the maker of the statement had personal knowledge of the matters dealt with by the statement or when the document in question forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had or might reasonably be supposed to have, personal knowledge of those matters; and if the maker of the statement is called as witness in the proceedings.
Note that the document can still be admissible if the maker is dead, unfit by reason of mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success. Admissibility of documents can only be objected to on points of law and in accordance with the provisions of the evidence Act. In Folorunsho V. F.R.N (2017) LPELR 419 72 (CA) it was said that. “The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial judge. It is not automatic. Admissibility of a document is one thing and the weight the court will attach to it is another. The weight the court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence”. Per MIM PAR JCA.
It is worthy to note that a party on whom notice to produce a document is served is not under obligation to produce the document. The service of the notice only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of section 91 of the Evidence Act 2011. See Per GALINJE, JSC (P.8. Paras B-E in NWEKE V. STATE (2017) LPELR – 42103(SC).

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