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PRODUCTION OF SECONDARY EVIDENCE IN ABSENCE OF ORIGINAL

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Although secondary evidence of an original document is generally admissible after the notice to produce the original has failed to yield positive results, secondary evidence is admissible and the requirement of notice dispensed with in the discretion of the court when (a) the document to be proved is itself a notice; (b) from the nature of the case the adverse party must know that he will be required to produce it; (c) it appears or it is proved that the adverse party has obtained possession of the original by fraud or force; (d) the adverse party or his agent has the original in Court; (e) the adverse party or his agent has admitted the loss of the document. See Section 97(b) of the Evidence Act. The content of Exhibit “D2” constitutes the subject matter of the action against the respondent. It is therefore reasonable to assume that from the nature of the case appellant knew or ought to have known that he will be required to produce it at the trial. See Machin ,’. Ask (1950) L.G.R.87. Exhibit “D2” is therefore admissible.

— Karibe-Whyte, JSC. Din v. African Newspapers (1990)

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SECONDARY EVIDENCE NOT PRODUCED IN ACCORDANCE WITH REQUIREMENT IS INADMISSIBLE

Under Section 83(1) of the same Evidence Act, only the original copy of a document produced by its maker, if it is relevant to the facts in issue, is admissible in evidence. There are, however, other qualifications to the rule in Section 83(1) of the Evidence Act. While Section 88 of the Act directs that documents shall be proved by primary evidence it makes allowance for exceptions including secondary evidence of the existence, condition or contents of a document e.g. as in Section 89 thereof. A secondary evidence of the contents of a document which is not produced in accordance with the material provisions of the Act, though relevant to the issue in the proceedings, will not be admissible in evidence.

— E. Eko, JSC. Kekong v State (2017) – SC.884/2014