Tendering of documents in evidence in a matter in Nigerian Courts has often been seen to be the same thing with seeking admissibility of documents in evidence by many legal practitioners in Nigerian Courts and this ubiquitous practice in the practice of law leaves the writer with no option but to embark on journey of finding answers to some fundamental questions which often worm their ways into the writer’s mind.

Some of the said questions are: Is it the right of a lawyer to tender documents in evidence? Who has the right to tender documents in evidence in court? Are there conditions for tendering of documents in evidence? Do the three conditions for admissibility of documents in law applicable to tendering of documents in evidence? Is the tendering of documents the same with admissibility of documents? Is the tendering of documents and seeking admission of documents in evidence inseparable? Are there procedural requirements on taking evidence in-chief?

It is against the background of scouting for rational answers to all the aforementioned questions among others that this piece is written with a view to broadening horizon of the readers and adding to repertoire of any interested readers who wish to join the writer in the said journey through objective reading of this piece and taking hints on the message passed by the writer.

This piece is principally based and hinged on the result of the research and inquisitiveness of the writer to find out why many lawyers do mingle tendering of documents with admissibility of documents in evidence in Nigerian Courts as if the tendering of documents and seeking admissibility of documents in evidence are the same and inseparable.

Many lawyers during trial are fond of telling the court that they seek to tender documents in evidence and placing objection to tendering of documents by the opposing Counsel on conditions to be met for admissibility of documents laid down in plethora authorities. How right is this practice?

Recourse to the Rules of Court evinced a clear provision in the Rules of Court of all State High Courts including Federal High Court in Nigeria under the heading ‘Evidence generally’ wherein required procedure on what a witness should do during examination in-chief at trial is provided for.

It is the provision of the Rules of Court under the heading ‘Evidence generally’ in all State High Courts (Civil Procedure) Rules and the Federal High Court (Civil Procedure) Rules 2019 that the oral examination of a witness during his evidence-in-chief is limited to confirming his written deposition and tendering in evidence documents referred to in the deposition. For easy reference, the provision of Order 32 rule 2(3) of High Court of Ogun State (Civil Procedure) Rules 2014 and Order 20 rule 1(3) of the Federal High Court (Civil Procedure) Rules 2019 are hereunder produced respectively.

‘The oral examination of a witness during his evidence-in-chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other exhibits referred to in the deposition.’

Order 20 rule 1(3) of the Federal High Court (Civil Procedure) Rules 2019 goes thus:

‘The oral examination of a witness during his evidence-in-chief shall be limited to confirming and adopting his written deposition and tendering in evidence the disputed document or other exhibit referred to in the deposition.’

The above quoted provisions are the same and in all fours the same with the provision of paragraph 41(3) of the First Schedule to the Electoral Act, 2010(as amended) considered in the case of Andrew vs. I.N.E.C. (2018) 9 NWLR (part1625)507 wherein at page 542 paragraphs A-C court held thus:

‘By virtue of paragraph 41(3) of the First Schedule to the Electoral Act, 2010 (as amended), relating to the taking of evidence -in-chief in election proceeding, there shall be no oral examination of a witness during his evidence-in-chief except to lead the witness to adopt his written deposition and tender in evidence all dispute documents or other exhibits referred to in his deposition. In an election petition proceeding, the provision makes it clear that evidence-in-chief of a witness is his witness statement on oath which he is only permitted to adopt and nothing more. After adoption, the witness statement of oath becomes his evidence-in-chief. The only other aspect of what will constitute part of the record and/or evidence is his answers to questions during cross-examination.’

Fortifying the assertion that the provision of 41(3) of the First Schedule to the Electoral Act (as amended) is the same provision with the provision of Order 32 rule 2(3) of High Court (Civil Procedure) Rules 2014 and the provision of Order 20 rule 1(3) of the Federal High Court (Civil Procedure) Rules 2019, the provision of 41(3) of the First Schedule to the Electoral Act (as amended) is hereunder quoted thus for comparison:

‘There shall be no oral examination of a witness during his evidence –in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.’

Flowing from the above quoted provision, it is crystal clear that the oral examination of witness during evidence-in-chief is exclusively limited to adoption of his deposition and tendering documents referred to in his deposition and nothing more.

It is worth saying that usurpation of the right of tendering documents given to a witness under the Rules of Court and robbing witness of his right to tender documents referred to in his deposition has become ubiquitous practice by many Lawyers and there is a dire need to put a stop to such practice.

It is the writer’s stand that tendering of documents in a matter is an exclusive right of a witness and not right of any lawyer to tender documents in evidence and any documents to be tendered by witness must be only documents referred to in the witness deposition.

It must be noted that if documents are not referred to in a witness deposition, such documents cannot be tendered and the witness has no right to tender such documents.

It is the writer’s advice that lawyers who are desirous of using any documents in a matter should include those documents by reference in a witness deposition at the preparatory stage of pleading with its accompaniment particularly witness’ statement on oath. Statement on oath of a witness is the replica of the pleadings of the party on whose behalf the evidence is given.

It is further advised that having facts pleaded in a pleading or documents to be used as evidence pleaded in the pleading without having those documents referred to in a witness deposition does not confer right of tendering documents under the Rules of Court on a witness whose deposition is bereft of any reference to documents to be tendered in a matter.

It is equally the writer’s stand that right to tender documents is the exclusive right of a witness and lawyers who are in habit of seeking to tender documents are hereby advised to put a halt to such act and allow the witness to exercise his right to tender documents in evidence.

It is thus submitted that objecting to tendering of documents is not the same thing with objecting to admissibility of documents. They are two different things in law though often misconceived to be one and the same.

It is thus recommended that the usual statement of some lawyers that ‘We seek to tender documents in evidence’ be replaced with ‘witness seeks to tender documents in evidence’ and lawyers are hereby advised.

It is further advised that lawyers who are desirous of objecting to any documents to be tendered in evidence should distinctively object to tendering of documents or admissibility of documents as the two are not the same and mingling tendering of documents in evidence with seeking admissibility of documents in evidence should be put a halt to.

It is to be bore in mind that there are no criteria set down for tendering of documents in evidence via any authority and the three criteria that the fact relating to the document be pleaded or document if constitutes evidence be pleaded; that document to be admitted must be relevant and the said document must be admissible in law are exclusive conditions for admissibility of documents and not for tendering of documents in evidence.

It is equally worth saying that the common practice of some lawyers of leading witness during examination in-chief to lay foundation for the tendering of documents particularly secondary documents with utmost view to fulfilling conditions provided under section 89 of Evidence Act runs contrary to the provision of the Rules of Court which limits oral examination of the witness during examination in-chief to adoption of witness statement on oath and tendering of documents referred to in the witness statement on oath.

It is the writer’s stand that any fact which a witness wishes to prove at the trial must be by written deposition and any facts required to lay foundation for admissibility of secondary evidence must be clearly stated in the witness deposition and permissiveness of oral examination of witness in open court should not be stretched beyond as basis for leading witness during examination in-chief to lay foundation for the tendering of documents particularly secondary documents with utmost view to fulfilling conditions provided under section 89 of Evidence Act.

Fortifying the above writer’s stand is the provision of Order 32 rule 2(1) of High Court of Ogun State (Civil Procedure) Rules 2014 which is also provided for in all the State High Courts (Civil Procedure) Rules and in Order 20 rule 1(1) of the Federal High Court (Civil Procedure) Rules 2019 in Nigeria. The provision of Order 32 rule 2(1) of High Court of Ogun State (Civil Procedure) Rules 2014 and Order 20 rule 1(1) of the Federal High Court (Civil Procedure) Rules 2019 go thus:

‘Any fact required to be proved at the trial of any action shall be proved by written deposition and oral examination of witnesses in open court.’

It is the writer’s stand that deductible fact to be bore in mind from the provision that ‘oral examination of witnesses in open court’ in the above quoted provision is that the said provision does not permit leading witness during examination in-chief to lay foundation for the tendering of documents in evidence particularly secondary documents with utmost view to fulfilling conditions provided under section 89 of Evidence Act and the said provision should not be construed to be the ground for such practice.

On a final note, it is hereby advised and recommended that sub-provision under any broad Rules of Court should not be read in isolation and every Legal Practitioner should always endeavour to find out applicable procedure provided for under the Rules of Court in doing anything in court and before taking any step in seeking justice in courts for clients as doing that would enhance speedy determination of cases in Nigerian Courts.

S.O. Giwa Esq. a.k.a pentalk (Ibadan based Legal Practitioner) [email protected], 08035224192