1.
Primary
Evidence
This is the best
evidence, original evidence, and that particular means of proof, which under
any probable circumstances affords the greatest certainty of the fact in issue
– specific and definite and carrying on its surface no indication that a better
evidence lurks behind. The meaning and nature of primary evidence is as stated
in section 86 of the Evidence Act, 2011,
as follows;
(1)
Primary evidence means the document
itself produced for the inspection of the court.
(2)
Where a document has been executed
in several parts, each part shall be primary evidence of the document.
(3)
Where a document has been executed
in counterpart, each counterpart being executed by one or some of the parties
only, each counterpart shall be primary evidence as against the parties executing
it.
(4)
Where a number of documents have
all been made by one uniform process, as in the case of printing, lithography,
photography, computer or other electronic or mechanical process, each shall be
primary evidence of the contents of the rest; but where they are all copies of
a common original, they shall not be primary evidence of the contents of the
original.
Finally, by section 88 of the Evidence Act, 2011, documents
shall be proved by primary evidence except in the cases mentioned in the Act.
2.
Secondary
Evidence
This is evidence of
hearsay or testimony of contents of a lost document; mediate evidence,
substitutionary evidence. By section 87
of the Evidence Act, 2011; secondary evidence includes—
(a)
certified copies given under the
provisions hereafter contained in this Act;
(b)
copies made from the original by
mechanical or electronic processes which in themselves ensure the accuracy of
the copy, and copies compared with such copies;
(c)
copies made from or compared with
the original;
(d)
counterparts of documents as
against the parties who did not execute them; and
(e)
oral accounts of the contents of a
document given by some person who has himself seen it.
Section
89 of the Evidence Act, 2011 further clarifies
issues when it states that secondary evidence may be given of the existence,
condition or contents of a document when-
(a)
the original is shown or appears to
be in the possession or power— (i) of the person against
whom the document is sought to be proved, or (ii) of any
person legally bound to produce it, and when after the notice mentioned in
section 91 such person does not produce it;
(b)
the existence, condition or
contents of the original have been proved to be admitted in writing by the
person against whom it is proved or by his representative in interest;
(c)
the original has been destroyed or
lost and in the latter case all possible search has been made for it;
(d)
the original is of such a nature as
not to be easily movable;
(e)
the original is a public document
within the meaning of section 102;
(f)
the original is a document of which
a certified copy is permitted by this Act or by any other law in force in Nigeria
(g)
the originals consist of numerous
accounts or other documents which cannot conveniently be examined in court, and
the fact to be proved is the general result of the whole collection; or
(h)
the document is an entry in a
banker's book.
Lastly, by section 91 of the Evidence Act, 2011, secondary evidence of the contents of
the documents referred to in section
89(a) shall not be given unless the party proposing to give such secondary
evidence has previously given to the party in whose possession or power the
document is, or to a legal practitioner employed by such party, such notice to
produce it as is prescribed by law; and if no notice to produce is prescribed
by law then such notice as the court considers reasonable in the circumstances
of the case.
Provided that such
notice shall not be required in order to render secondary evidence admissible
in any of the following cases, or in any other case in which the court thinks
fit to dispense with it—
(a)
when the document to be proved is
itself a notice;
(b)
when, from the nature of the case,
the adverse party must know that he will be required to produce it;
(c)
when it appears or is proved that
the adverse party has obtained possession of the original by fraud or force;
(d)
when the adverse party or his agent
has the original in court; or
when the adverse party
or his agent has admitted the loss of the document.