Admissibility Of Copies And Excerpts Of Minutes Of The Meeting Of A Company Under Nigerian Law

by Oluwabusayo Ayinde

Admissibility Of Copies And Excerpts Of Minutes Of The Meeting Of A Company Under Nigerian Law¹

INTRODUCTION

In Nigeria, the admissibility of minutes of a company’s meeting as evidence is governed by the Companies and Allied Matters Act 2020 (“CAMA 2020”)² and the rules of evidence contained in the Evidence Act 2011 (the “Evidence Act”).³

PROVISIONS OF CAMA 2020

Minutes are records of a company’s meetings. They can serve as important documentary evidence in legal proceedings, evidencing discussions, decisions and resolutions made during meetings. Section 266 (2) CAMA 2020 states that the minutes of a meeting (if signed by the Chairman of the meeting at which the proceedings were held, or by the Chairman of the next succeeding meeting) is prima facie evidence of the proceedings of that meeting.

As long as minutes are kept in accordance with the provisions of Section 266 (2) CAMA 2020, the meeting is presumed to have been duly held and businesses conducted during the meeting are presumed to have duly taken place unless the contrary is proved. However, this presumption of regularity is rebuttable and does not automatically make minutes or copies/excerpts thereof proof of what transpired at the meeting. Instead, it contributes to the weight that will be attached to the evidence contained in the minutes.

One of the requirements for admissibility of copies or excerpts of a company’s minutes is authentication. To be admissible, copies/excerpt of minutes of a company’s meeting must be properly authenticated. By virtue of Section 267 (2) CAMA 2020, the Company Secretary is obliged to certify copies of minutes given to members upon their request. This is indicative of the fact that the certification of minutes is typically done by the Company Secretary to establish that the copies are accurate reproductions of the original minutes. This contributes to the admissibility of the document, while the weight and credibility to be attached to the contents of the document will be assessed by the court after admission.

PROVISIONS OF THE EVIDENCE ACT 2011

The original minutes of a company’s meeting are considered primary evidence and are generally admissible by virtue of Section 83 of the Evidence Act 2011 provided that they are relevant to the facts in issue and satisfy the conditions stated in the aforementioned section. Copies or excerpts of minutes of a company’s meeting are considered secondary evidence and their admissibility is governed by the rules of evidence. Section 85 of the Evidence Act 2011 provides that contents of documents can be proved by primary or secondary evidence and this applies to the admissibility of copies/excerpts of minutes. Therefore, where the original minutes are unavailable or inaccessible, copies or excerpts can be admitted as acceptable secondary evidence.

Another requirement for the admissibility of documentary evidence as contained in Section 81 (1) (b) of the Evidence Act is that the maker of the document be called a witness. Who then is the maker of the minutes of a corporate meeting? The maker of the minutes of a company’s meeting is typically the person responsible for preparing and recording the minutes.

By virtue of Section 335 CAMA 2020, it is the duty of the Company Secretary to “attend the meeting of the company and render all necessary secretarial services as well as to maintain the registers and other records required to be maintained by a company”. Therefore, it follows that the Company Secretary is typically the maker of the minutes of a company’s meeting and for the copies or excerpts of the minutes of a company’s meeting to be admissible, the maker (that is the Company Secretary) should be called as a witness in the lawsuit.

In addition, due to the fact that the person who chairs a company’s meeting or “the Chairman of the next succeeding meeting'” is obligated (by virtue of Section 266 (2) CAMA 2020), to sign the minutes of the meeting as prima facie evidence of the proceedings of that meeting, it can be argued that the Chairman who signs such minutes also qualifies as a maker of the minutes and to this extent, the Chairman can tender the minutes of that meeting as evidence in court as maker of the document.

However, Section 83 (2) of the Evidence Act 2011 grants the court the authority to order the admissibility of a document, or to admit a document as evidence, even if the maker is unavailable or absent, or if the original document is not presented. Instead, a certified true copy of the original document or a substantial part thereof can be provided in its place. The court may exercise this discretion when it determines that any other course of action would result in undue delay or excessive cost. It can be observed from the foregoing that the court possesses the discretion to admit a document in evidence, even when the technical requirements of sections 81 are not met.

WHO CAN TENDER COPIES AND EXCERPTS OF THE MINUTES OF THE MEETING OF A COMPANY AS EVIDENCE IN COURT?

As we have noted above, ordinarily, it is the maker of a document that can tender the document in evidence according to Section 83 (1) of the Evidence Act 2011. Nevertheless, the same section further stipulates that the requirement for the maker of a document to be called as a witness may be waived if:

1. The maker is deceased,
2. The maker is physically or mentally incapable of attending as a witness,
3. The maker is outside Nigeria and it is impracticable to secure their presence, or
4. All reasonable efforts to locate the maker have been unsuccessful.

In line with this reasoning, the Court of Appeal addressed the issue of whether a person who is not the maker of a document can tender the document in Ajayi v. State.⁴ The Court held that:

The general principle is that the proper person to tender a document is the maker so that the other party can have the opportunity to test the authenticity and veracity of the document and its content under cross-examination. However, documentary evidence can be tendered in the absence of the maker under certain conditions. Failure to tender a document through the maker does not render the document inadmissible. The failure to tender the document through the maker goes to the probative value to be attached to it after taking into consideration the entire circumstances of the case.⁵

In the same vein, the Court of Appeal per Yahaya JCA in Mr. S. Anaja v. United Bank for Africa Plc,⁶ held:

It is not controverted that the documents in question had been pleaded and are relevant to the case. It is correct, as submitted by counsel for the appellant, that DW1 who tendered them, was not the maker, and the makers had not been called to enable the appellant to cross-examine them. However, the respondent bank as a juristic person, can only act through natural persons. Any servant or agent of a company such as the respondent bank, can give evidence and tender documents to establish any transaction it entered into or the activities it had undertaken. The servant or agent may not of necessity, have to be the one who actually took part in the transaction or activity, for the company. His evidence is admissible, relevant and not hearsay.⁷

Ebiowei Tobi JCA relied on this in Oguejiofor v Access Bank⁸ in addressing the issue of whether bank documents can be tendered by any staff of the bank and held that the documents in question were bank documents and can be tendered by any staff of the bank.

This shows that documents can be tendered by persons other than the maker of the document in appropriate circumstances, after proper foundation has been laid, and this will not render such document inadmissible as evidence in court. Tendering a document by a person who is not the maker of that document does not render the document inadmissible where the document is otherwise admissible in law.

From the analysis presented above, it can be inferred that copies or excerpts of a company’s meeting minutes, which are considered company documents, are best tendered in evidence by the Company Secretary who is the maker of the minutes or the Chairman who affixes his/her signature to the document. Where the Company Secretary or Chairman is not available and it is established that seeking their attendance will result in undue delay or excessive cost, any authorized officer of the company can tender copies or excerpts of a company’s meeting minutes as evidence, as long as the document meets the other requirements for admissibility under the law, such as proper certification and relevance to the facts and issues in dispute.⁹

CONCLUSION

Based on the preceding information, it is apparent that copies or excerpts of a company’s meeting minutes are admissible in evidence as long as it is relevant to the facts in issue and meets the requirements for admissibility of documentary evidence under Nigerian Law.

Nevertheless, it is crucial to recognize that the admission of a document solely signifies that its contents have been accepted as evidence before the court. Subsequently, the court will scrutinize the document to assess its probative value, determine the significance to be assigned to it, and make a decision regarding its validity as proof of its contents.

Footnotes

1. Oluwabusayo Ayinde, Associate Real Estate & Succession, S. P. A. Ajibade & Co., Lagos, Nigeria.

2. Companies and Allied Matters Act, 2020 (Act No. 3 of 2020).

3. Evidence Act, 2011 (Act No. 18, 2011).

4. (2021) LPELR-56344 (CA).

5. Per Mistura Omodere Bolaji-Yusuf, JCA (pp 15 – 16 paras B – C).

6. (2010) LPELR-3769 (CA).

7. Pages 34 – 34 paras A – E.

8. (2020) LPELR-49583(CA).

9. See Section 83 of the Evidence Act for the requirements for admissibility of documentary evidence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.