What is the best evidence rule?
With the growth of commerce, disputes are bound to arise. When these disputes arise, parties involved approach the courts to ventilate their displeasures and enforce their rights. Parties to a dispute before a court of law are required to put forward evidence[1] in support of their respective claims. Only by evidence is the court able to determine the claims of the parties. Generally, the parties in proof of their claims must tender the ‘best evidence’[2].
The best evidence rule is a rule of evidence, excavated from common law antiquities, that requires an original document, photograph, or other piece of evidence be introduced to the court to establish the truth of its content. In the case of oral evidence, it is the testimony of a witness who either saw, heard or smelt fact that is sought to be established that ought to be tendered.[3] A classic example of the application of the rule is when you consider a plaintiff arguing that a specific provision of a contract never existed. The parties ought to produce the original contract, rather than a photocopy, to establish the veracity of that assertion.
The courts want to see the original evidence. If the original is destroyed or for some reasons inaccessible, a copy will be accepted. However, the copy must be proved by a witness who can testify as to the contents and confirm that it is an accurate copy of the original.
The purpose of the best evidence rule.
The purpose for the best evidence rule is to help ensure the court receives unaltered evidence that is legible, or clearly perceivable and not distorted evidence. This rule does not mean that secondary evidence like copies of documents or other evidence, like admissible oral hearsay evidence[4] can never be used in court – only that, if the actual contents of that evidence is in question, the best evidence to prove it is the original where the proof is required to be by documents and if by oral testimony, it must be by the individual who has direct and firsthand knowledge of the facts sought to be proved.
By way of analysis, the proof of the occurrence of an event or fact that has been documented in writing, audio, or photographic evidence is not subject to the Best Evidence Rule. In other words, except the law specifically stipulates that only original documentary evidence is admissible in proof of the facts in issue[5], any other means can be used in the alternative of the original. . Given that the piece of evidence is relevant, the court ought to consider its admissibility, even if it is not the best evidence. There are no categories of evidence, as between best evidence on the one hand and a lesser category on the other , when considering admissibility.
The categorization of evidence may only be relevant to ascertain the weight that should be accorded its credibility. What should govern admissibility is firstly to consider whether the piece of evidence is relevant, and more importantly there are no provisions in the Evidence Act that disallows its admissibility. Where a piece of evidence is irrelevant it ought to be immediately rejected. There is no room to consider whether it may be admissible by other provisions of the Evidence Act. That piece of evidence fails to cross the threshold test for admissibility.
Relevance is not a sole criteria for admissibility
It is often said that what governs admissibility of evidence is relevance[6]. It is common to hear Judges say , that piece of evidence is relevant, and it is therefore admissible or the contrary might be said; that piece of evidence is irrelevant and it is therefore inadmissible. Whilst the latter comment is correct, the earlier comment, equating relevance to admissibility, is incorrect. Relevance is only one of the factors that determine the admissibility of evidence. A piece of evidence may be relevant to the facts in issue but yet remain inadmissible because it has not met other requirements for admissibility.
Relevance is the ‘first”’ (not the only) requirement for admissibility of any evidence. This is so whether the piece of evidence is being tendered in a in civil or criminal matter. Within the context of admissibility, relevance occupies a predominant role even though not an exclusive one. It is however irrelevant whether the piece of evidence is the best or not the best. See Elegushi v. Oseni (200S) 7 SCNJ 416 at 436 [7]. Lord Denning MR says that “nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence[8]. The goodness or badness of it goes only to weight and not to admissibility.”[9]
A witness, for example, may testify by oral evidence on oath that there was a merger between two companies without submitting any certificate of merger in evidence. In this case, the witness is not testifying to the contents or procedure of the merger, but rather to the fact that there was indeed a merger[10]. Except there is a law that stipulates that the only way to establish a merger is by tendering the merger certificate, the uncontroverted oral evidence[11] establishing averments in the pleadings[12], is sufficient to establish the fact that a merger indeed occurred[13]. In the preceding analogy, the best evidence may very well be a certificate that records the fact of the merger, (the certificate[14] of merger) but that does not preclude or rule out the fact that it can be proved by other means. It can be proved by any category of evidence unless statutes provide otherwise[15]. Besides, the law is settled that where evidence is uncontradicted, the onus of proof is satisfied on a minimal proof since there is nothing on the other side of the scale.[16]
Oral Evidence may be tendered to establish contents of a document.
It is now established that where the original of documentary evidence[17] is unavailable, secondary evidence in the form of copies (certified true copies in the case of public documents) can be tendered and once its relevance is established, it is to be admitted. Suffice to say that where the ‘best’ evidence in the form of the original or any copies are unavailable, theoretically, oral evidence can be led to establish the occurrence of an act and not necessarily the content of any document emanating from or evidencing the act. Oral evidence of a person who witnessed the fact of the act sought to be established will thus be very admitted in the circumstance.
The above analogy in mind (the merger analogy), oral evidence may not necessarily be the best evidence to establish the fact in the scenario above, but it is still good evidence and cannot be rejected for not being the best. Thus, where in addition to the oral evidence, documentary evidence is tendered, it will operate to make the oral evidence more credible. This implies that even without the documentary evidence, the oral evidence which is led to establish the fact that an event occurred is credible and that the document in support, if any, is only to make the oral evidence ‘more’ credible[18].
Best evidence relevant in the face of contrary evidence.
The best rule simply means that the best evidence ought to be produced whenever the opportunity arises. It does not render inadmissible secondary evidence. The relevance of “best evidence” is revealing when for instance there is contrary competing evidence (good evidence). In such instance, the party that fails to produce the best evidence will lose when faced with competing contrary evidence.. The admissibility of best evidence is one thing, the weight or credibility to be accorded that same piece of evidence, is an entirely different issue. The court is also obligated to attach weight to the evidence, once it is admitted. The substance of the weight to be attached will be determined at evaluation by the court[19].
Where, in the merger scenario given above, the oral evidence led is cogent and relevant, there will be no need for documentary evidence as the oral evidence has properly covered the entire evidential scene. In Inakoju & Ors v. Adeleke & Ors[20] the court held thus;
Where oral evidence is cogent and relevant, there is no need for documentary evidence as the oral evidence has properly covered the entire evidential scene. Hansard, though a useful documentary evidence of the proceedings of the House of Assembly, is not always necessary for proof of any aspect of the proceedings. Cogent oral evidence is enough.
Conclusion
The ‘best evidence’ rule, as expounded above, relates to both documentary and oral evidence. The best evidence is the most appropriate and unadulterated evidence needed to prove a given set of facts. Thus, the evidence of an eye witness is best evidence for that purpose. For documentary evidence, it is to the effect that where documentary evidence is to be tendered as evidence to establish a fact, the best evidence to establish that fact is the original document. However, there are instances where it may be impracticable to lay hold of the original documents. In such instances, secondary evidence will conveniently take the place of the best evidence. The absence of the “best evidence” should in no way affect the quality of the fact sought to be established by its nonproduction. Once the absence of the best evidence is sufficiently explained, the court ought to give the same credence as it would have given the best evidence if it was available.
[1] In Phipson on Evidence, 12th Edition “evidence” is defined and classified at pages 2-3 paragraphs 3-5 in the following language: “Evidence, as used in judicial proceedings, has several meanings. The two main senses of the word are: first, the means, apart from argument and inference, whereby the Court is informed as to the issues of fact as ascertained by the pleadings; secondly, the subject-matter of such means. The word is also used to denote that some fact may be admitted as proof and also in some cases that some fact has relevance to the issues of fact. In a real sense evidence is that which may be placed before the Court in order that it may decide the issues of fact.
[2] Historically, in 18th century England, Philip Yorke, 1st Earl of Hardwicke – a prominent lawyer of the time – made the argument that no evidence should be admissible in court, unless it is ” the best that the nature of the case will allow.”
[3] Lawrence Nwankpu & Anor. v. Dennis Ewulu & Ors. ( 1995) 7 NWLR (Pt. 407) 269
[4] Admissible oral hearsays are evidence of a person who speaks as to the existence of a state of fact, rather than as to its truth. If Mr. A hears Mr,C say he saw Mrs B enter a building, it is admissible if Mr. A gives evidence that Mr. C said he saw Mrs B enter a building and no more than that. Subramaniam v. Public Prosecutor, Judicial Committee of the Privy Council, 1 W.L.R. 965 (1956). A.-G., Oyo State & 1 Ors. v. Fairlakes Hotels Ltd. & Or. (1988) 5 NWLR (pt.121) 255
[5] See Section 3 of the Statute of Fraud that speaks to transfer of title to land.
[6] Section 6 of the Evidence Act provides that: Evidence may be given in any suit or proceeding of the existence or non – existence of every fact in issue and of such facts as are hereinafter declared to be relevant.
[7] C. B. Ltd. V. Alhaji Umoru Gwagwada (1994) 5 NWLR (pt. 342) 25. The State v. Onyeukwu (2004) 7 SCNJ P.A
[8] Here, by ‘we admit all relevant evidence’, Lord Denning is speaking in the context of the Best evidence rule. It should not be interpreted to mean that once a piece of document is relevant, it will be admitted even if it fails to meet other criteria for its admissibility. In other words, Denning’s statement should be read to mean, ‘we admit all relevant evidence that have satisfied all other conditions for admissibility and the mere fact that it is not the best evidence does not render it inadmissible’.
[9] Garton v. Hunter [1969] 1 All ER 451, [1969] 2 QB 37.
[10] See BELLO v. IDRIS (2022) LPELR-56730(CA)
[11] See NUT & ORS v. CONFERENCE OF SECONDARY SCHOOL TUTORS (COSST) & ORS
(2005) LPELR-5953(CA) where the court held thus
“In the circumstances, the 1st – 4th Appellants who had the opportunity to contest the averments in the affidavit in support of the originating summons in their affidavit in support of the motion to strike out the originating summons, but failed to do so are deemed to have admitted the said averments, as there is nothing to show that any of the averments is inherently incredible. See Azeeze v. State (1986) 2 NWLR (Pt.23) 541; Agbaje v. Ibru S.F. Ltd (1972) 5 SC 50; National Bank Vs. Are Brothers (1977) 6 SC 97; Sofumonu v. Ocean Steam Ship Nig Ltd (1987) 4 NWLR (Pt.66) 691. See Azeeze v. State (1986) 2 NWLR (Pt.23) 541; Agbaje v. Ibru S.F. Ltd (1972) 5 SC 50; National Bank Vs. Are Brothers (1977) 6 SC 97; Sofumonu v. Ocean Steam Ship Nig Ltd (1987) 4 NWLR (Pt.66) 691.
[12] See West African Shipping Agency (Nig.) Ltd. v. Alhaji Musa Kalla (1978) 3 S.C. 21 at page 31; Omoregbe v. Lawani (1980) 3-4 S.C. 10; Emaphil v. Odili (1987)4 NWLR (Pt. 67) 915 at 939, Section 136 of the Evidence and LIPEDE & ORS v. SONEKAN & ANOR (1995) LPELR-1786(SC) where the court held that
“… since Exhibit 18 relied upon by the appellants has been shown to be otiose, having been revoked by operation of law, and the only evidence of Customary Law before the Court was that given by the respondents which was uncontroverted and unchallenged, the principle of law that where the evidence given by the respondents is uncontroverted and unchallenged, the court is bound to accept and act on it will come into play.
[13] See Egbunike v. ACB Ltd (1995) 2 NWLR (Pt.375) 34 SC.
[14] And that is if the issue is as to the content of the certificate
[15] For instance, where a public document in the custody of a public officer is sought to be tendered in evidence, the certified true copy of the original is the only admissible evidence of such document.
[16] Buraimoh v. Bamgbose (1989) 3 N.W.L.R. (Pt. 109) 352 at 363 para. H.
[17] As already stated, the Best Evidence Rule is not limited to documentary evidence.
[18] See EZE v. STATE (2018) LPELR-43715(SC) where the court held thus;
“Finally, when documentary evidence supports oral evidence, oral evidence becomes more credible. Documentary evidence always serves as a hanger from which to assess oral testimony. See Kimdey & Ors v. M.G. of Gongola State (1988) 2 NWLR (Pt.77) p.473. Omoregbe v Lawani (1980) 3-4 SC P.117 Olowofoyeku v. AG. Oyo State (1990) 2 NWLR (Pt.132)
[19] See the case of Akuru v. Olubadan in Council 14 WACA 523 @ 524
[20] (2007) LPELR-1510(SC)
-Advertisement-
Grab our latest Magazine, "Chief Wole Olanipekun, CFR, SAN, A man of wide horizons and deep intentions". Get your order fast and stress free.
For more details about Newswire Law&Events Magazine, kindly reach out to us on 08039218044, 09070309355. Email: newswiremagazine@yahoo.co.uk. You will be glad you did
Download E-Magazine
