This can be done through primary or secondary evidence. For public documents, you could use either primary or secondary evidence whereas the contents of a private document can only be proved by primary evidence except in instances where S. 68 of the Evidence Act allows use of Secondary Evidence.
WHAT IS PRIMARY EVIDENCE?
Primary Evidence would be the document itself produced in court for court inspection and perusal. Secondly primary evidence could be in the instance where a document is executed in several parts then each part is going to be primary evidence of the document and this contemplates a situation where you have a tenancy and a landlord and both their parts are essential for an agreement. Thirdly where a document has been executed in counterpart and some of the parties have only signed the counterpart each counterpart is primary evidence against the parties executing it. An example is a letter of offer of employment which gets to you in a number of copies, the employer signs the copies and when you receive you are supposed to sign them and keep one. Fourthly where documents are made by one uniform process each is primary evidence of the other. For instance when you buy books or newspapers, you cannot say that one is more authoritative than the other each will be primary evidence.
The categorisation is provided at Section 65 of E.A.
WHAT IS SECONDARY EVIDENCE
Section 66 of E.A. gives examples of secondary evidence to include
1. Certified Copies (defined at 80(1)
2. Mechanical Copies of the original, these include photocopies or sacrostyled copies.
3. Copies compared with the mechanical copies; read word for word to certify correctness.
4. Copies made from or compared with the original.
5. Counterparts of Documents as against parties who did not execute them; In the employment contract, offer is signed by employer acceptance by the employee.
6. Oral accounts of the contents of a document given by a person who has seen it. Mechanical copies are favoured more than oral accounts which are often tainted by ones perception of the issues.
WHEN IS SECONDARY EVIDENCE ADMISSIBLE?
Section 67 is the basis of what is called the best evidence rule, the provision that documents must be proved by evidence. The allowance of secondary evidence is a concession by the law to allow the second best. The optimal will be to have the document itself or whatever would comprise the primary evidence. It is rarely the case that secondary evidence is permissible where you could bring in primary evidence.
Secondary evidence is permissible when
1. The original is in possession or power of the adverse party;
2. It is in the possession of a person outside the court’s jurisdiction; you could not enforce the requirement that they produce
3. When in possession of a person who is immune from the court’s process; or any person not legally bound to produce the document. Section 68(1) (a) (iii).
In all these instances, if a notice to produce the document is served on the person, and they do not produce the original, secondary evidence of the document may be given. Essentially you give a notice to produce and you will be seeking the best evidence and only when you fail to get the best evidence you could go ahead and produce secondary evidence.
There are certain cases where the law does not require that you give a notice to produce.
1. Section 69 Notice is not needed when the document is itself a notice then you do not give a notice to produce. There is no essence of notifying the person if what is required is a notice itself. This is to avoid redundancy because if the document is a notice of motion, you need not give another notice.
2. When from the nature of the case the adverse party knows that he will be required to produce the document.
3. When it appears or it is proved that the adverse party received the documents by fraud or force;
4. When the adverse party or his agent has the original in court;
5. When the adverse party or his agent admits the loss of the document;
6. When the person having the document is out of the court’s reach or immune from the process
7. In any other case where the court thinks fit to dispense with this requirement.
Lakman Ramji v. Shivji Jessa & Sons (1965) E.A. 125
This case considered a situation where the document was in the power and possession of the adverse party. It was a suit for the payment in respect of extra work done under a building contract. the case for the defendant was that it had been agreed between the parties that a set sum would be accepted in settlement and that a cheque had been tendered and accepted. Evidence at the trial showed that the cheque was sent to the applicant in an envelop with a letter which stated that the cheque was in full and final settlement. The Applicant agreed that there was such an agreement but alleged that he had only received the cheque without a covering letter. A Carbon copy of the letter was produced and the trial court relied on it, together with a receipt at the back of the cheque. On Appeal the question was whether the evidence of the carbon copy had been properly received. It was held that in the circumstances it was not an unreasonable inference that the Applicant had received the covering letter. The court relied on S. 68 and 69
Sugden V. Lord St. Leonards (1876 QBD 15
The deceased made his will 5 years prior to his death. During the last 2 years of his life, he was sick at this time, his daughter kept the box which contained the will. She constantly opened the box and read the will’s contents. Unfortunately the will got lost and could not be found. At the trial, it was claimed that she could recite the contents of the will and her solicitors suggested that she write out the purport of the will from her recitation. The question was whether this transcript of the Will was admissible as secondary evidence of the lost will? The court held Yes it was admissible as secondary evidence.
WHEN CAN SECONDARY EVIDENCE BE TENDERED
1. Essentially you can use secondary evidence where a notice to produce is given contemplated at S. 69(i) of the Act. “when the document to be proved is itself a notice.
2. The second instance where secondary evidence is allowed is where the existence condition or contents of the original are shown to have been admitted by the adversary or his representative. There is no contestation so you can produce secondary evidence.
3. When the original has been lost or destroyed or when the original cannot be produced within a reasonable time for reasons other than the fault of the person who wishes to rely on it. In this case destruction or loss has to be testified to by witnesses who saw the document destroyed or have knowledge of its loss. The destruction or loss is a matter to be ascertained by the Court and once it is ascertained that the loss occurred without the fault of the person seeking to rely on the evidence, secondary evidence can be tendered.
4. When the original is of such a nature as not to be easily movable for instance writings on a building.
5. When the original is a public document for which a certified copy may be tendered.
6. When the original is a document of which a certified copy is allowed by the Evidence Act or any other law.
7. When the original consists of numerous accounts or other documents which cannot be conveniently examined in court and the fact to be proved is a general result of the whole collection, the secondary evidence may be given.