At the back page of the BusinessDay edition of Thursday 15th June, 2023 (Vol. 21, No. 1,441) an article titled – Objection by a public office to the admissibility of its own certified documents: An evidential anomaly – was published under the names of Mr. Osaro Eghobamien SAN, a very respected member of the Inner Bar and Michael Onyishi, both of Perchstone & Graeys. In the said article, the authors frowned at INEC’s conduct of objecting to the admissibility of the electoral documents in the ongoing Presidential Election Petition proceedings, describing it as an anomaly, same documents having been certified by the same INEC.
It is the learned authors’ view that presumption of regularity of the certification of the said electoral documents ought to be invoked in favour of the said documents more so that the INEC, the certifying officer, is a party to the proceedings and therefore ought not to be allowed to benefit from any complaint of want of due certification of the documents.
Rejoinder
Inviting and attractive as the opinion of the learned authors may appear, we state in rejoinder that same can only be valid if and only if the basis of the INEC’s objection to the documents is truly want of due certification. It is gratifying to note that the authors themselves admitted to the fact that INEC has reserved the ground of its objection till the appropriate time (in this case, till the address stage, in line with the Pre-Hearing Report issued by the PEPT).
It thus therefore seems to suggest and clearly too that the opinion of the authors is with profound respect, predicated on a conjecture or an assumption that the ground of INEC’s objection cannot but be want of due certification.
Another dangerous assumption underlying the learned authors’ opinion is their seeming belief that objection to admissibility of certified true copies of public documents can only be restricted or rather conscripted exclusively to want of due certification and nothing more. This pontification, we however submit, has no place in law.
Yes, it is agreed that the right enures to any person interested to apply to a public officer in whose custody there is a public document for the certification of the said document for his use; and this the LP has done with regards to those documents obtained from the INEC. It is however not correct to state that the fact of certification of a public document by a public officer, without more, even if there is due compliance of certification, qualifies the said document for admissibility in a judicial proceeding, contrary to the opinion expressed by the learned authors.
The test of admissibility
The rule of evidence and particularly the Evidence Act does not exempt certified true copies of documents from the categories of other documentary evidence when it comes to rules governing admissibility of documents. So, regardless that a public document is duly certified, it must still pass the test of admissibility for it to come into evidence.
As established in a long line of cases, admissibility is first and foremost based on relevancy. It is only after the proposed evidence is relevant to the issues joined by the parties in their pleadings that it may become necessary to consider if other rules of evidence have been met before the proposed evidence can be admitted. Relevancy is therefore a precursor to admissibility under the Law of Evidence. See for instance Nwabuoku v. Onwordi (2006) 5 SC (pt. III) 103. The law as established by long line of cases is that for a court to admit a document in evidence, the court must carry out some enquiries, namely: (1) is the document pleaded? (2) is the document relevant to the issue in the dispute before the court? and (3) is the document admissible under the Evidence Act or any other statute governing its admissibility. See for instance Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) p. 250 and Fredrick v. Ibekwe (2019) 7 NWLR (Pt. 1702) p. 467.
If we may supply an analogy or rather raise a poser here: if a case in court against INEC complains of submission of a forged secondary school certificate by a candidate to the INEC as part of the former’s qualification to contest an election, will a certified true copy of a First School Leaving Certificate be relevant to the determination of such a complaint? If not, will the court admit it in evidence simply because it was duly certified and obtained from INEC which is also a party to the proceeding? The rule of evidence ably supported by the established case law says “No”.
It is no gainsaying the point that one of the instances where a public document, even if it is duly certified, will be rejected in evidence is on occasion where it is completely irrelevant to the issues in dispute as per the cases presented by the parties before the court. Please see the above cited cases.
The issue of placing technicality above the substance raised by the authors in their article clearly cannot come to the rescue where for instance, the certified documents are quite irrelevant to the issues in dispute. The issue of admissibility of a piece of evidence for the purpose of proof in respect of an assertion of fact, is one of pure law and cannot and should not simplistically be termed as one of technicality when the law has been firmly established on it. See Garba JCA (as he then was) in Vese v. WAIFEM (2018) 2 NWLR (pt. 1603) p. 336 at 359.
Conclusion
Due certification of a public document does not automatically qualify it as admissible in a judicial proceeding. The admissibility of such document is relative to the issue in controversy in the case and the usefulness or otherwise of the said document in the determination of the said issue. It is one thing for a public document to be duly certified, it is another thing for the document to be relevant to the issues arising from the case of the parties as expressed in their pleadings. A party cannot, under the guise of tendering certified true copies of public documents, midway, smuggle in and/or project a claim and/or complaint different from the complaint as contained in his pleading before the court. Such evidence is said to go to no issue and therefore inadmissible in law; and objection on that ground, even from the party that certified such documents, cannot at all be said to be an anomaly.
Kamoru is partner, Pinheiro LP
