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Evidence Note.
OUTLINE:
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Definition, nature and classification of evidence.
Relevancy and admissibility.
Sc 14 andSection15 of the Evidence Act.
Facts deemed relevant by the evidence Act (other types of relevant facts Section
4-13)
Similar facts evidence.
Admissions and confession
Facts that need not be proved
 Presumptions.
 Judicial notice.
Burden and standard of Proof.
Estoppel.
Materials
The Evidence Act, 2011
Other relevant text on evidence:
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Aguda.
Sebatine Hall (Law of evidence in Nigeria)
INTRODUCTION.
One of the legacies of imperialism is the adoption of the adversarial system of
adjudication. Here, judges are not allowed to descend into the arena. It is opposed to the
inquisitorial/inquisitional system where judges are allowed to seek for and give evidence.
The inquisitorial system is practiced in France.
Substantive law and the law of evidence are co-joined. They can be said to be Siamese
twins.
Presentation of evidence is key to the successful outcome of a case/suit. No matter how
gifted a lawyer is, he needs the sacrosanct rules of evidence. Evidence has been described
as the heartbeat of the law.
Substantive law cannot operate in vacuo, it must be mixed with evidence. The combined
effect of the proper mixing of evidence with substantive law leads to the success of most
suits. Evidence is important in civil and criminal matters.
Evidence can’t be easily defined. Many scholars have defined evidence.
Phipson: Evidence is the testimony, whether oral, documentary or real which may be
legally received in order to prove or disprove some facts-in-issue. Criticisms: This
definition did not take into consideration, electronically generated evidence, tape
recording and sky writing. This definition was restrictive and limited in scope.
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Cross: Evidence is the testimony, hearsay, documents, things and facts which courts will
accept as evidence of facts-in-issue in a given case. Criticism: This definition was
restricted to what courts would accept as evidence whereas, inadmissible evidence is also
evidence. E.g. if a document is tendered at court and it has been rejected for some reason,
the document would not be returned but retained by the court and marked “rejected”. In
case of an appeal, the rejected evidence can also be looked into. What is offered in
disprove of facts-in-issue is also evidence… in essence, cross failed to highlight/mention
it.
Nokes: Evidence received by the courts of justice to prove or disprove facts the existence
of which comes into question before then and which may be legally received in evidence.
Criticism: It restricted evidence to what the courts would legally receive. Illegally
acquired evidence is also admissible in a court of law. Section 14 and 15 Evidence Act,
the law can admit illegally obtained evidence so far the evidence is relevant to the subject
matter of the action. If the evidence is relevant, the courts may admit it even if statutes
were violated to obtain them. Musa Sadau v The State.
Aguda: Evidence is the means by which facts are proved but excluding inferences and
arguments. Criticisms: inferences are necessarily part of evidence. e.g. The court is
entitled to infer the intention of a person from the nature of his action. E.g. where a
person is found in possession of an item soon after the theft, the courts can infer the
person is the thief or thereabout. These invalidates Aguda’s definition/argument.
In Inyia v Ogbuji? 2011 Alfr. Pt. 556 p493 @557. “the term “evidence” has been aptly
described as any specie or proof or probative matter legally presented at the trial of any
issue by the parties and through the medium of witnesses, records, documents, exhibits,
concrete objects and so on… for the purpose of inducing belief in the mind of the courts
or jury as to their contentions“…
“evidence consists of laws, rules, principles, and procedures that regulates the means or
methods of proving facts or adducing evidence before a court of law or tribunal”.
15th January, 2016
SOURCES OF EVIDENCE.
By virtue of Section 3 EAct, 2011, there are two sources of evidence in Nigeria.
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The Evidence Act Cap E14, 2011 (Evidence Act)
Evidence contained in any statute (A law providing for rules of evidence e.g The
ICPC Act).
Note that: the Evidence Act would prevail in the event of any conflict with other statutes
containing rules of evidence. The rules of evidence belongs to the exclusive legislative
list-only the federal government can make enactments thereon
CLASSIFICATION OF EVIDENCE.
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Oral Evidence: Oral evidence is often adopted in the court of law. This is
provided for in Section 125 which states that all facts should be established by oral
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evidence…… Section 126 provides that certain evidence should be given by
eyewitnesses(evidence that can be seen) if it is evidence that can be perceived, it
should be evidence of the person who can claim to have perceived it….. Humans
have several senses so they can give evidence through that means. Like; I saw it
happen, I heard the gun shot, I perceived the smell, and so on… if someone dies in
a room and 3 days later the witness perceived the offensive odour, he has sensed it
though his smell (nose) and can give evidence on such.
Documentary Evidence: Section 258 EA did not provide an exhaustive definition
of what constitutes documentary evidence. It give us just descriptions like, books,
design, graphs, paper that can offer information… it does not really matter the part
….. it may be a sign, a mark… so long as it can offer an information. Some text
writers have argued that the use of the word “includes” means that any other thing
can be added to the list. Documentary evidence is all embracing in the sense that it
is not just paper writing that is documentary… an inscription can be
documentary,….. so long as it can pass a message…. A billboard on the street, can
constitute documentary evidence… an inscription on a tombstone, and so on. We
are not restricting it to something that has been written on paper. So long as it can
convey a message…. Tattoos signs, symbols, and so on. Provided they can be
interpreted. Thus, the word “documentary” can be all embracing.
Direct Evidence: this is synonymous with oral evidence… ie. Evidence from the
source... when a person is giving evidence of what transpired from what he has
seen. This evidence is usually linked with oral evidence. In Section 126 the word
“direct was also used in describing oral evidence”.
Circumstantial Evidence: This evidence is usually used in criminal proceedings.
When the evidence is not direct but from the facts and circumstances, it can be
construed…
Therefore it is fact or set of facts capable of connecting the accused person with
the crime. Such evidence must be positive and unequivocal. It must not give room
for doubt. Circumstantial evidence is also described as natural evidence. It is so
natural in nature that it is not something that someone has manufactured. It is
prevalent in criminal matters because most accused persons do not commit the
offence in the full glare of the public… therefore, the investigator can gather facts
that can point to the fact that he committed the offence…. Example the last seen
principle has been used… where the accused was the last to be seen with the
deceased. Peter Igho v the State 1978 3 SC at Page 87. In this case, the accused
took the deceased on his bicycle and soon after that the corpse of the person was
found in the bush. The accused claimed that he was not responsible. The court
made use of circumstantial evidence to convict him. Same conclusion was arrived
in Olusola Adepeju? v the State. 1998 5 NWLR Part 565 at page 185. Corpus
delicto-Where the corpse of the deceased cannot be found Atah v the state 1993 4
NWLR Part 288 at page 60. In this case, the accused person who happened to be a
quack doctor was approached by two lovers for the purpose of procuring abortion.
The woman was found motionless and when the lover came back the second time,
the corpse of the lady was not found. He was convicted of manslaughter. Thus, the
fact that the corpse is missing does not mean there can be no conviction. Arichie v
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State 1996, 6 NWLR Part 302 Page 752. In this case the accused (cab driver) was
to take a business-man from the village to a motor park. Eventually, the business
man did not return to Lagos and was not found. When the Cab man was arrested,
he claimed that they had accident on the way and the vehicle fel into a river. The
police went to the river and did not find any vehicle there. The court arrived at the
conclusion that the cab man killed the businessman.
Real Evidence: This consists of any material object whether moveable or
immovable. In other words, any kind of thing can come under it like axe, pen,
corpse, and so on. Anything that you can think of whether animate or inanimate. It
has been said that if a particular facts do not come under the above classifications,
it can come under real evidence. Provided it is not of the metaphysical or it is not
spiritual.
Hearsay Evidence: this refers to a situation where the witness repeats a statement
or tenders a document prepared by a third party in proof of the facts stated then it
is hearsay. Ordinarily, it is not admissible but there are several exceptions under it.
Hearsay evidence is a third hand or second hand information.
Primary evidence: Original documents produced for the inspection of the courts.
Secondary evidence: This is evidence other than the original document is
secondary. Like photocopies of documents.
19th January, 2016.
RELEVANCY AND ADMISSIBILITY.
Before we proceed, we need to define what a “fact” is. Section 258 defines a fact as
anything, state of things, or relation of things which can be perceived by the senses…. Or
mental condition of which a person is conscious. This definition is so wide… By
interpretation, once it is something that we can use our senses to comprehend, then it is a
fact. Once something can be verified by any of the senses… we must distinguish it from
something that is in the metaphysical like spiritual notions like life after death….
The next thing we should understand is: “fact-in-issue”. It includes; any fact which either
by itself or in combination with other facts, the existence of, the existence, non-existence,
nature or extent of any right, liability or disability is asserted or denied in any proceeding.
Section 258 defines what a “fact-in-issue is”. In simpler terms they are facts upon which
the courts can predicate its judgment. E.g. in a defamation case, the court has to look at
the elements of defamation like; words have been uttered, the words can demean the
reputation of the person. In other words, Facts-in-issue are those facts that would enable
the court to give judgement in favour or against another person. Witnesses can be called
to prove… rebuttals can also be used. In a criminal matter, any fact that would enable you
to prove the offence charged, is a fact-in-issue. E.g. the offence of stealing needs “the
intention to permanently deprive the owner of that thing”. Any fact outside the
ingredients of the offence would not be a fact-in-issue. Really, fact-in-issue would be
those fact that would enable the court to determine the rights and liabilities of the parties
appearing before the court… in a civil case you need to use pleadings… With respect to
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criminal matters, it is the offence charged that would determine what would be a fact-inissue.
“RELEVANCY/RELEVANT FACTS”: usually those facts that are so connected with the
facts-in-issue as to render it probable or improbable. Phipson defines it as facts which as
a matter of logic or experience tend to render the existence of other facts probable or
improbable. Which would help the court determine the veracity of the fact-in-issue. It is
capable of rendering the fact-in-issue probable or improbable. Relevant fact is equally
important.
ADMISSIBILITY: is essentially a matter of law. It is to be determined by the provisions
of the Evidence Act or any other statute in force. It is whatever the law says is admissible
that would be admissible. Admissibility therefore leads to legal issues while relevancy is
a matter of logic, common sense and experience.
THE RELATIONSHIP BETWEEN RELEVANCY AND ADMISSIBILITY.
The court is expected to determine whether a fact is relevant. Once is it logical, it is
relevant while admissibility is a matter of law. The first task of law is to determine
whether a particular fact is relevant and admissible. Section 1 EA provides that it is only
relevant and admissible facts that the courts can take into consideration. First, the court
would have to determine whether a particular fact is relevant. When it is relevant, the
court may admit it. While all admissible facts are relevant, not all relevant facts are
admissible. Because before a fact is admissible, it must have passed through the test of
relevancy. A relevant fact may not be admitted (i.e. it can be rejected) on grounds of
inconsistency with statute, public interest/policy, social policy… e.g. a fact may be
relevant yet excluded because certain provisions of the EA are against the fact. E.g. if a
fact constitutes a hearsay, it may not be admitted. Another example is where the fact
violates the privilege of another person… then the courts may exclude it. E.g. as a legal
practitioner, communication between you and your client should be secret and privileged,
if you want to disclose the communication, the court may refuse it because it breaches the
privilege and right of your client. Thus, not all relevant facts would be taken into
consideration.
Note also that a fact may be relevant but may be excluded if it is too remote to the subject
matter of the action. Section 1(3) E.g. if a witness is giving testimony on a matter relating
to title to land and you are asking him questions relating to his ability to put a woman in
the family way-Section 1(a).
Generally speaking, relevancy and admissibility are the guiding principles for the courts
to accept or reject a fact.
RELEVANT FACTS AND ILLEGALLY OBTAINED EVIDENCE.
There are two competing interests here that the courts must balance
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The need to ensure purity in the administration of justice: whatever evidence that
is being led must not be in violation of any statute, constitution or due process.
There must be due process in the course of giving evidence.
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Ensuring that a suspect would not escape justice merely because due process was
not followed in deriving the evidence.
These are the two major interests that the court would be called upon to balance. That the
stream of justice is not polluted. Thus, if the law stipulates that if you want to execute a
search, you need to get a duly executed search warrant, then you should do just that. The
person that is executing the search must be searched to prevent him from putting the
evidence by himself. The search must be conducted in the presence of two neighbours.
Where these procedures are not complied with, the question is: should the evidence
derived from such illegal search be admitted? It may be in breach of Section 37 of the
1999 Constitution relating to the right to privacy. What should be the attitude of the court
where evidence has been derived from breaching a person’s right to privacy? These are
the competing interests that the court would have to look at.
Prior to the enactment of the EA 2011, the attitude of the court was using the discretion to
admit evidence obtained illegally/unfairly. The deciding factor was whether the evidence
is relevant. If it is relevant, then the court would admit it Musa Sadau v The State, 1969
NWLR 265. The question was whether the fake printing machine and documents
gathered in the course of an illegal search were admissible. The court relied on the
common law attitude of the court to hold that since those fake printing machines were
relevant, they were admissible. The Supreme Court also agreed that the relevance of a
particular fact was fully on whether it was obtained illegally. Fawehinmi v NBA, there
was a resolution by the NBA prohibiting lawyers from appearing before the Military
Tribunal to investigate politicians. But Gani Fawehinmi appeared. The NBA set up a
committee and wanted to open a black book where they would put Fawehinmi’s name.
He went to court to challenge the NBA. Some lawyers also stepped in to settle the rift
(Rotimi Williams, Sofola, and so on). As soon as Gani arrived for amicable discussions,
he requested that the entire proceeding should be on tape. After a lengthy discussion, it
was agreed that Gani Fawehinmi can tape-record the conversation. Gani objected to the
appearance of the lawyers for the NBA relying on the tape recorded conversation wherein
the matter was about to be settled. Then objection was raised that the recorded
conversation was obtained illegally. The court relied on Musa Sadau v the State to reject
the argument and obtained the evidence from the tape. The important thing was whether
the fact is relevant. Even in a particular case, the court held that even if the evidence was
stolen, it can be adduced.
In Section 14 and 15 of the EA, the discretion of the court to obtain illegally obtained
evidence has been extinguished. Section 14 makes the blanket rule that a particular fact
would not be excluded merely because it was obtained illegally. Then Section 15
prescribes conditions/factors that the court must take into consideration in determining
whether to reject or admit illegally obtained evidence. They include:
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The probative value of the evidence: to the case. What is the utility of the evidence
that is being given? Does it have evidential value at all?
The importance of the evidence to the proceeding:
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The nature of the relevant offence, cause of action and subject matter viz-a-viz the
implication of accepting or rejecting the evidence.
The Gravity/impropriety of the contravention: The courts would look at the
magnitude of the violation. Is it one that is so fundamental or one that is of little
consequence?
Whether the impropriety or contravention was deliberate or reckless.
The courts would examine the difficulty (if any) in obtaining evidence without
impropriety or contravention of law. How practicable is it to legally obtain
evidence considering the facts, and nature of the case. For example in executing
drug barons.
Section 14 is the starting point. Then Section 15 enumerates guiding principles which we
have just listed above. These factors can be considered severally rather than jointly.
In conclusion, there appears to be a link between illegally obtained evidence and relevant
fact.
22nd Jan, 2015
TYPES OF RELEVANT FACT
SECTION 4 EA AND THE DOCRINE OF RES GESTAI.
Res gestai is a specie of evidence that throws light on the facts-in-issue in terms of
proximity, time, place… they accompany the facts-in-issue as to form part of the same
transaction. It explains the facts-in-issue. The purpose of Res Gestai is to explain the
facts-in-issue. (Please confirm the spelling of this “gestai”) It is an ancillary fact that
can be used to amplify a fact-in-issue. For a fact to be admitted as res gestai, it must fulfil
three requirements viz:
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It must relate to the act i.e. the fact which they accompany-Agassiz v London
Tramway Company Ltd. In this case, a passenger gave evidence that he
complained of the recklessness of the driver before the accident. The passenger’s
evidence was refused because it referred to the past act of the accused.
The statement must have been made by the person affected. The courts would
reject statements of third parties of what he heard from the main actor or of what
he heard about the incident.
The fact must be contemporaneous to the fact-in-issue.
What are the parameters for assessing contemporaneity?
Re Bedingfield, here the accused was alleged to have cut the throat of a woman. She ran
out saying: “Aunty, see what harry has done to me”. The court rejected this statement
because the statement was made after the incident. There was no contemporaneity. Also,
R v Temper.
A lot of text writers have criticised contemporaneity. Some have argued that Section 4 is
a codification of the common law rule of Res gestai. This would lead us to the
examination of Section 4 which provides that facts which though not in issue but are so
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connected to the fact-in-issue as to form part of the same transaction are relevant.
Whether they occurred at the same time and place or at different time and place. NB:
When you see textbooks written prior to the enactment of the EA 2007, they say “section
7”. Just know that they are talking about Section 4.
The question relating to Section 4 is in two parts:
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Whether Res gestai and Section 4 are the same or whether Section 4 is wider in
scope than the doctrine of res gestai.
The desirability of admitting res gestai in the Nigerian court.
On the first question: (the relationship between res gestai and Section 4. Whether they are
of the same scope).
Prior to the decision in Ratton v R? It can be argued that res gestai was limited in scope in
the sense that the courts will only admit facts that occurred at the same time and place.
This was referred to as the strict contemporaneity rule. After the decision in Ratton v R
the court evolved “proximate contemporaneity” to water down the hardship occasioned
by strict contemporaneity. In this respect therefore, you can argue that the common law
doctrine of res gestai and Section 4 are exact in scope and content.
With respect to the second argument: of whether the Nigerian courts would be justified to
admit res gestai. It is worthy to note that the EA did not mention the word res gestai in
any Section. Section 5A of the old EA has been repealed under the EA 2011.It is Section
5a that gives the courts the power to admit every other evidence apart from the provisions
of the EA. Thus they are entitled to admit evidence as res gestai. The argument was that
since EA both the old and the new did not mention the word “res gestai”, it was wrong for
the Nigerian courts to admit evidence as res gestai to the neglect of Section 7 (which is
now Section 4). Read the cases for better understanding. Sunday Akpan v The State, here
a 12 year old boy gave evidence that he heard his mother saying “Sunday has killed me”.
The court rejected this as evidence. GET THE MATERIAL. Sule Salau v The State, in
this case, the accussed carried a lady off the ground and slammed her. Someone came to
the scene and the lady narrated (to the witness) how the accused knocked her on the
ground. Unfortunately, she died before she was able to testify in court. The witness that
wanted to give evidence based on what he heard from the deceased was rejected on the
ground that it was not contemporaneous. Okapoi? V State, in this case the deceased was
hit with a machete by the accused and the deceased shouted “ovieahon”? has killed me”.
This evidence was rejected.
We can see in all these cases that the courts were in error for rejecting these evidence.
This also underscores the fact that the Nigerian court have used the doctrine of res gestai
to reject evidence.
In summary; two issues usually come up:
1. Determine the exact length and breadth of Section 4. Compare Section 4 and res
gestai.
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2. Look at the attitude of the Nigerian courts in using res gestai without looking at
the statutory provisions of the EA. Remember that Section 3 provides that the
sources of evidence shall be that found in the EA and other statutory provisions. In
essence, Nigerian judges are not bound to follow the common law rules on
evidence… the res gestai being of common law origin.
29th Jan, 2016.
Other types of relevant facts.
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Section 5 EA: under this Section, facts which are the occasion, cause or effect of
relevant facts or facts-in-issue or which constitute state of things under which they
happened or which afforded an opportunity for their occurrence are relevant facts.
In essence when a fact can explain the reason for the happening of an event or
afford the opportunity for the occurrence of an event or the consequences of such
occurrence. E.g. the courts have admitted marks on the ground as being a result of
murder. In the case of Mark v Stewart 1970 1 WLR page 97 even though
ordinarily marks on the ground would not be evidence of murder, also the case of
Isibor v The State, 2001 FWLR part 78 at page 1077.
Section 6: talks about evidence of Motive: Any fact which shows or constitute
motive or preparation for any fact-in-issue is relevant. The motive of any human
being may be positive or negative… Such evidence/facts may be given either in
civil or criminal matter. Jimoh Ishola v The State 1978 9-10 SC at page 81. It was
a case of murder. The prosecution adduced evidence to show that prior to the
offence the accused had visited that scene of crime on various occasions and was
involved in fights and acts of vandalism… on one occasion he had attacked
deceased. The court admitted these facts to show that he had the motive of
committing the offence. Another case is Iyaro v The State, in this case the accused
was charged with the offence of armed robbery. It was alleged that the accused
driver led his passengers to a location and sounded the horn his car to attract the
armed robbers. They were robbed. The court held that he drove the passengers to a
pre-arranged spot… Evidence of motive was admitted in this case. Atano v Ag
Bendel 1988 1 NSCC. Forgery was in issue and the accused was the senior
manager of the bank. He went to the premises and sent the security man to put on
the generator and he entered the bank and locked the security man outside. Fire
then engulfed the building……. The court held that the accused had a motive of
setting the bank on fire… The evidence of motive was accepted in this case.
Nweke v The State 2001 FWLR part 401 at page 1595, the accused was alleged to
have killed his wife. The wife was 8 months pregnant when she was killed. The
accused had disowned the pregnancy and put up various acts of hostility towards
the wife. Evidence of motive was adduced to show that the accused had ill feeling
towards his deceased wife.
In summary, once there is evidence of motive, it can be admitted as relevant fact
under Section 6.
Section 7: facts necessary to explain or introduce fact-in-issue may be admitted as
relevant fact. Facts which may identify the identity of a person, facts relating to
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time place, or relationship between the parties are relevant facts. E.g. when
pleadings are prepared, the first few paragraphs would necessarily contain facts
that are relevant under Section 7… (having a preliminary background). E.g. in
filing a statement of claim, the first paragraph would be for the plaintiff to show
his name, occupation, gender and so on. The second paragraph would show that he
has something to do with the defendant… in essence, preliminary facts introduce
the facts-in-issue…
Section 8: talks about facts relating to conspiracy… where two or more people
conspired to commit an offence or actionable wrong, statements and acts of one
conspirator would be binding on the other co-conspirator… but where it relates to
measures TO BE taken in furtherance of their common intention, the fact would be
binding only on the maker except the statement was made in the presence of the
other co-conspirator. In conspiracies, there are situations where you have the
principaland secondary offender… where a person aids, abets or procures a person
to do an act…. Those facts can come under Section 8 and it would be deemed that
the acts of one conspirator is also that of the other conspirator(s)… thus, the
conspirators would have to swim together or drown together. Where it has to do
with specific measure to be taken, it would only be binding on the particular
wrongdoer except the statement/act was made in the presence of the other coconspirators. Anthony Enahoro v The State 1965 NMLR page 265, R v Blake
and Tye, in this case, the accused conspired to pass goods through the custom
without paying custom duties. The action was actually carried out serially. In one
of the abduction, the goods were in respect of what the accused conspired to
smuggle and the other abduction/operation was for the benefit of only one of the
accused. The court held that the first batch/operation was binding on all the
accused conspirators… not the second batch..
Section 9: talks about when facts that are not relevant become relevant. Facts
which ordinarily may not be relevant would become relevant if the fact is
inconsistent with the fact-in-issue or if the fact is capable of rendering the
existence or non-existence of fact-in-issue probable or improbable. In other words;
when you look at a fact and the purport of the fact is capable of rendering the factin-issue inconsistent, then the court can admit it as relevant fact… notwithstanding
that initially, it was not considered to be relevant. E.g. Akingbade v Elemosho,
was a case of declaration of title to land and the plaintiff was allowed to tender the
conveyance that he executed in favour of the purchaser in respect of adjoining
land. The court admitted this to note that he had title to the land in issue.
Anagbado v Anagbado 1992 1 NWLR part 216 at page 207, sued for divorce and
alleged that the defendant was cruel and usually abused him for his deformity even
in the presence of their children. The defendant countered that she loved her
husband and does not want divorce, she was able to prove that within a state of
about 8 years they were able to have 6 children. This fact was accepted holding
that they could not have been in a really sour relationship and still be having
children. The divorce was not granted. The fact-in-issue (dissolution of marriage)
could not be established from the facts of the case because their having 6 children
(which is not so relevant to the case) contradicted the fact in issue.
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Section 10: Facts relating to award of damages: any fact that would enable the
court to determine the amount of damages to be awarded is a relevant fact. E.g. in
a case of defamation where a person is claiming that his reputation has been
damaged… he can give facts relating to the losses he has suffered in relation to the
defamation. Or in the situation of damage of property, (e.g. when the government
was constructing the road), experts or witnesses could be used to show the extent
of damage and value…
Section 11: facts showing existence of state of mind or body: are relevant fact… it
may be that a person is of unsound mind… you need not call a psychiatrist…
neighbours, members of the community, and so on can testify or attest to the fact
that a person is not well upstairs…
On the face of it, a fact can be relevant in more than one of these sections… In other
words, these sections are not cast in iron. … a good lawyer should be able to know the
appropriate section to cite…
NEXT TOPIC: SIMILAR FACTS EVIDENCE.
2nd February, 2016.
Proving evidence by reference to similar facts…. It is a means of treating like cases alike.
When facts share some qualities with the fact sought to be proved in the current case, then
it is similar fact evidence. The general rule is that similar fact evidence is inadmissible.
At common law, the mere fact that a man had been convicted of rape on previous
occasion(s) does not mean that he committed rape in the instant case… That he stole last
year does not mean that he is guilty of theft in the instant case…. This would amount to
giving a dog a name in with a view to hang it… in essence, each case must be proved on
its own merit… This rule is logical and in line with common sense… This rule (exclusion
of similar fact evidence) was evolved by Lord Herschell in the case of Makin v AG
New South Wales. The couple were in the habit of taking unwanted babies to insure those
babies. One of the babies was killed in a mysterious manner and the couples were
charged. The prosecution was allowed to give evidence to note that similar babies were
adopted by the couples and died in the same manner and the remains of some other babies
were exhumed from the house they occupied. The issue was whether the fact of previous
death of babies can prove the fact that the instant death was caused by the Makins. The
court held; “it is not competent for the prosecution to adduce evidence tending to show
that the accused had been guilty of criminal acts other than those covered by the
indictment… for the purpose of leading to the conclusion that the accused is a person
likely from his previous conduct or character to have committed the offence for which he
was charged”… This is the exclusionary? Rule stated by Lord Herschel. There are some
exceptions adumbrated by the same lord in the same case…
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If it bears upon the question whether the act alleged to constitute the crime
charged in the indictment were:
 designed or
 accidental or
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 to rebut a defence… These are the three exceptions.
The decision in this case was also followed in R v Ball 1911 AC at page 47? In this case,
a brother and sister were living together as husband and wife. After the enactment of the
incest law, they still continued to live together. They were charged with the offence of
incest. The prosecution was able to give evidence that they had sexual relationship in the
past which resulted in a child. This evidence was accepted. See also; Harris v DPP 1952
AC 694.
The common law rule of SFE is contained in Section 12 of the EA 2011. It provides:
“where there is a question whether an act was accidental or intentional ir done with a
particular knowledge or intention the fact that such act forms series of similar occurrences
in each of which the person doing the act was concerned… is relevant”. This restates the
common law rule.
The SFE principle has been admitted in the following instances: (situations in which
similar fact evidence can be given)
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Common Origin: with the subject matter of the action. Manchester Building v
Combs 1901 2 CH at Page 608. In this case, a person sued that he was given a
defective beer by the brewery… he sued for damages… In order to prove the
allegation, evidence was given that previous buyers were also given a defective
product. This shows that there was a problem with the brewery. Also recall the
incident of a person that was arrested for selling “My Pikin” Paracetamol… where
it was adduced that the same “my pikin” harmed other babies. Also the case of
Akerele v R 1943 AC page 255. Here a doctor was charged with the offence of
manslaughter on the accusation that he administered a dangerous substance to a
kid. The doctor said that the drug was harmless… That it was the physical
peculiarity/biological peculiarity of the child that made him react. Evidence was
adduced that the same doctor did the same thing for about 9 babies who also
reacted and died. The court held that the drugs were NOT harmless…Thus, this is
a situation of common origin (in that the drugs are same)… Also looking at
Section 35 EA “the act of possession/ownership exercised by a person over a
parcel of land or adjoining land is a relevant fact in the claim of ownership of
land-Okechukwu v Okafor 1961 ANLR at page 685, Olukoga vFatunde? 1996
9-10 FCNJ at page 1, Amadu v Ngeri 2010 43 WRL at page 52 (especially at
106). Thus, the disputed and the adjoining land has common origin… and that he
has been exercising various acts of ownership (like leasing, farming, giving it out
and so on). This would be a relevant fact to be considered by the court under
Section 35.
Knowledge: in cases where proof of knowledge is an essential element of the
offence, similar fact evidence is relevant and admissible. IF you want to establish
knowledge (especially where it is key to proving the offence). R v. Adeniji 1937 3
WACA at Page 185. The accused was charged for being in possession of a
machine that prints and mints fake coins. His defence was that he did not know the
function of the machine. Evidence was adduced that counterfeit currencies were
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found in his possession. This was admitted to show that the accused had
knowledge of what the machine was meant for. Ogbeide v Commissioner of
Police, in this case, the accused issued a cheque which was dishonoured. His
defence was that he did not know that there was insufficient money in his account.
The prosecution was able to establish that he had previously issued dud cheques to
2 other people which was dishonoured. The court held that this should have let
him know that he did not have enough money in his account. Similarly, in a
charge of receiving stolen property, similar fact evidence is relevant to prove the
guilty knowledge of the accused by showing that 12 months preceding the offence,
the accused was found/was in possession of stolen property and that within 5 years
preceding the date of the offence charged, the accused had been convicted of an
offence involving fraud/dishonesty.-Section 36 EA. These can be admitted as
similar fact evidence to show that the accused had knowledge of the stolen
property. The third one is:
To show system or pattern of conduct: In order to prove a system or pattern of
conduct, adopted by a person, similar acts by him may be proved. The court would
require similar incidents to show that this is the way and manner by which the
accused normally perfects his crime… Similar facts evidence may be adduced to
show the procedure adopted by a person. In R v Smith 1915 11 CAR page 229,
the accused was in the habit of insuring his wife and soon after the insurance, the
wife would die. The prosecution was able to prove that he had previously insured
2 of his wives who also died. This was used to prove the system/pattern. Also in
Hales v Kerr 1908 2 KB at Page 67 here a barber was sued for barbing a customer
with unsterilized razor which made him to contact ring worm. Other customers
who were similarly barbed by the same barber had ring worms. The court admitted
this as similar fact evidence to show that in the barbing saloon, they were in the
habit of barbing without taking precautions.
Proof of Identity: Under the common law, similar fact evidence may be given to
identify the accused as the perpetuator of a crime. Note that this is not applicable
under the Evidence Act… A particular crime may show by its very nature that
only a person with abnormal propensity like the accused could have committed it.
Persons who possess these traits are few and rare. The abnormal propensity may
be such that will stamp the accused with the hallmark of a specialised and
extraordinary class. This has been applied in curious cases of murder and sexual
offences. There are some people that when you look at their physical traits, you
can come to a conclusion that the person is likely to commit certain crimes. R v.
Straffel? In this case the accused killed two girls and made attempts to hide their
bodies. 4 hours later, he also killed another girl and attempted to hide her body.
The prosecution was able to adduce evidence of other girls that were killed. The
prosecution was allowed to give evidence of previous killings. The court held that
it is only a person with the accused’s personality/traits that can do such. Where the
physical traits or character of a person is well known in the community, it may be
useful in provingsimilar fact evidence.
These are the four instances in which similar fact evidence may be used…
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9th January, 2016.
ESTOPPEL (Section 169-174 EAct).
Note the High Tree’s Case- where the landlord was estopped from increasing the rent
event when during the war he did not move out, and promised not to increase the rent.
If someone makes a representation to another person and the other person has altered his
position and even suffered on it, the person who made the representation will be estopped
from alleging otherwise.
The word “estoppel” is a French word from which the word “stop” emerged. It basically
means a person is prevented from denying his earlier representation. i.e. he is estopped.
This principle is well defined by Belgore JSC in Oyerogba v Olaoha (1996) 13 NWLR
pt 583 at 519 and it states thus; “when a person represents fact, either with the knowledge
of its falsehood, or that it should be relied upon and a reasonable man relies on same and
acted upon it and his position is altered, an estoppel arises against the person who made
the representation-This is referred to as the Promissory Estoppel.
Estoppel of Record/Estoppel parem Judicatum??. In practice, when you say estoppel per
record … when a person obtains a judgment against another, it means that another matter
cannot arise from that judgment. Meaning that there should be an end to litigation. Once a
court (e.g. Supreme Court) pronounces on a judgment, then it has estoppel per record.
E.g. A sues B over land and B wins in the court. If C wants to sue B over the same land,
the court judgment may serve as an estoppel.
Judgment may be in personam or in rem. In rem is binding against the whole world. In
personam is binding as between the parties.
Estoppel may also arise where a person has been paying a landlord money… Section 169
to 179?
Under estoppel per rem Judicatum?? The issues/facts must have been considered and
determined finally between the parties. If the determination is by the court, it is called
estoppel by record… if it is by a tribunal it is called estoppel by quasi-record. Section
169? -174? Section 26 MCA preventing the court from granting a dissolution of marriage
where the petitioner had condoned the act being complained about… Section 36(9) of the
1999 Constitution. Makun v University of Technology 2011. The Supreme Court held
that res judicata aims to bring an end to litigation. It seeks to ensure that no one is
proceeded against a second time. See also the case of Iyaji v Eyigebe 1987 3 NWLR part
61 52.
TYPES OF ESTOPPEL
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Estoppel Record
Estoppel by conduct.
Estopel by agreement.
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Estoppel by Deed.
Estoppel by standing by.
Please note that this list is not exhaustive.
ESTOPPEL: A SHIELD OR A SWORD?
Whether a plaintiff can make a case of estoppel? Generally; NO.
The only way it can be used is if the plaintiff is replying to the defence of the defendant.
If the defendant raises an issue and in his reply.
Therefore, estoppel is used as a shield rather than a sword. Estoppel is a shield which
should only be used by the defendant. You can see the case of Loye v Olubode 1974 All
NLR Part 2 at page 118. The court held that a plaintiff cannot plead estoppel or res
judicata… otherwise the case would be struck out. However, in Chinwedu v Mbamah,
the court suggested that the plaintiff may raise estoppel in his reply to the statement of
defence where he is disputing certain averments to such a statement or defence. See the
case of Uriah Adomba v Benjamin Odieze?? 1990 NWLR Part 125.
IS ESTOPPEL A RULE OF EVIDENCE OR A RULE OF SUBSTANTIVE LAW?
The EA recognizes various estoppel under Section 169 to 174? The effect of a successful
plea of estoppel is spelt out in the Act. To this extent, it may be said that estoppel is a rule
of evidence. See Ladega v Durosimi 1978 ANLR P79. Contrast this with Ijale v AG
Leventis 1965 1 All NLR 156? Which says that it is a substantive rule.
ESTOPPEL BY RECORD
The parties are prevented from re-litigating a cause of action that has been determined by
a court of law having jurisdiction in the matter. Emphasis is on court of law here. Rather
than elders of the community or friends or egbon or pastor, or administratively…
Please note that where a fact in issue has been resolved by a court between the same
parties none of them is allowed to deny or contest it. Hill v Hill 1954 AC page 291. In
this case, there was a divorce suit on the ground of cruelty. The court found that her
complaint was frivolous and her case was dismissed. She moved back to her matrimonial
home… after some time, the husband petitioned for divorce on the ground of desertion of
the wife. The wife in her reply averred that she deserted her husband because the husband
was cruel to her. On the issue of cruelty, the husband now raised estoppel. The court held
that she was estopped because the court has already ruled on the issue of cruelty in the
earlier case… she should have claimed under another issue or matter other than cruelty.
Sometimes, the res jiudicata can be raised out of issue not only out of case. Standard
Bank of Nigeria v Quom????????? 1972 1 all NLR Part 1 page 4. Also the case of Amos
Aro v Salami Fakolude??????? 1983 SC 75.
PLEASE CONFIRM THE SPELLINGS
Note also that for a case to fall under res judicata, it must have been determined on the
merit and it must be a final decision rather than interlocutory decision. E.g. a restraining
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order (maybe telling the man not to be within 20 meters of the house) is interlocutory…
the final one would be the divorce itself. Adebayo v Babalola 1995 7 SCNJ 306 at 309?
12TH FEB, 2016. ISSUE ESTOPPEL.
This may be necessary where a plea of res judicata could not be established simply
because the causes of action are not the same or the objects are different. Note that under
issue estoppel, it is immaterial that the case has not proceeded to finality.
Res judicata requires that the case must have been concluded and judgment obtained. The
judgment would act as etoppel by record either against the parties or the whole world.
However, to form issue estoppel, the case needed not to have proceeded to finality… if
any issue has been determined in the cause of the matter… there can be several issues in a
case. Once there has been a pronouncement by the courts on that issue, it would act as
issue estoppel.
In the case of Hill v Hill Where the wife petitioned the court for divorce on the ground of
cruelty, the court held that the ground was frivolous. The divorce did not succeed but an
issue was upheld as to whether there was cruelty between the two parties. In the
subsequent case the husband brought a case for divorce on the ground of desertion. The
wife in reply to that tried to raise the issue of cruelty. The court held that the issue had
been determined in the previous case. She should have pleaded cruelty subsequent to the
judgment… post the judgment. See Adebayo v Babalola 1995 7 SCNJ 306 @ 319 this
was a land matter but an issue arose to the effect that the plaintiff was not a ruling family
for the purpose of a certain chieftaincy stool. When a second dispute arose which was on
the chieftaincy title, it was held that issue estoppel applied since the issue of whether the
plaintiff was a ruling family had been answered earlier. Please note that for issue estoppel
to arise, it must be proved that:
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The same question was decided in the earlier judicial proceedings.
The Judicial decision in respect of that issue was final.
The parties are the same.
See Section 174(1&2) EAct, UBA v Edionseri 1988 2 NWLR 93
JUDGMENTS IN-REM AND IN PERSONAM.
JUDGMENT IN REM: is the judgment of a competent (the word “competent” here may
be of no use… because, once a court has made a pronouncement, it is binding until it has
been set aside by a superior court) court determining the status of a person or thing or a
disposition, probate and matrimonial etc. It is judgment against the whole world and is
conclusive against the whole world. E.g. if a court dissolves a marriage, every one is
precluded from denying the fact that the marriage has been dissolved. Section 59 and
60(1) EA. Another example of judgment in rem is a declaration. E.g. a pronouncement
that “blackacre” belongs to Mr A.
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JUDGMENT IN PERSONAM: is a judgment other than a judgment in rem. It only binds
the parties to the suit. E.g. judgments for breach of contract or judgment as regards tort.
Note further that a consent judgment (where the parties to a suit agree between
themselves (e.g. where the parties’ out-of-court settlement consensus is legitimated by the
court by consent judgment)) e.g. landlord sues tenant for 3 years rent and recovery of
possession. If the tenant approaches the landlord and settles that the 3 years rent arrears
should be forgone by the landlord and he would leave immediately. If the landlord agrees,
they can take the agreement to court for the judge to approve it. therefore there is consent
judgment. Consent judgment is judgment between the parties (in personam) and cannot
operate by way of estoppel by a party that did not consent/a third party. Only parties to a
judgment in personam and their privies are bound by it.
CONDITIONS FOR THE OPERATION OF ESTOPPEL BY RECORD.
In Alase and Others v Oloriilu and others, the conditions were listed:
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Parties, issues and subject matter must be the same in the previous and subsequent
cases.
Competent court: The previous judgment must be a final judgment and the court
must be one of competent jurisdiction. (there are so many things involved like):
 Composition: if Court of Appeal, 3 judges must seat.
 Jurisdiction: e.g. murder case cannot go before magistrate. In practice, the
magistrate would usually give holding charges to hold the suspect until the
offence is tried by a competent court.
The judgment must have been decided on merit (case must proceed to the end and
the parties heard) and must not have been obtained by fraud or collusion.
:: When we say “on same parties”-Sonekan v Smith 1964 1 AllNlr 1948, noted that:
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The judgment prevails as an estoppel in favour of the successors in interest against
the unsuccessful parties and his privies and successors in interest on the issues
decided. Also the case of Solaro v Seriki 1962 2 All Nlr 180.
The addition of a nominal party cannot destroy the essence of a plea of estoppel.
Permanent secretary, Ministry of Works Kwara State v Balogun 1975 5 Section
97.
The parties must have served in the same capacity in the two actions. Ajogodo v
Adegoriga? 1961 WNLR 177.
:: When we say “same issue ann subject matter”… the question to be answered here in
determining whether estoppel would apply is whether the same evidence would support
both cases. See the Hill v Hill example above. Madukolu v Nkemdilim 1962 All NLR
Part 2 581 at 594 to 595. Also the case of UBN v Edosein? Supra
:: When we say that the “the judgment or decision in the earlier case must be a final
decision” see Arubo v Aiyeleru 1993 3 NWLR part 280 at 126.
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Finally, for estoppel to apply, the decision must qualify as a judicial decision. Elders’
meeting, church meeting and so on would not qualify as estoppel. Kossein v Savannah
Bank 1995 12 SCNJ 29 at 40.
ESTOPPEL BY CONDUCT.
When someone has represented to another or misrepresented a material fact to another
and that person has altered his position in reliance to the representation, the representor
cannot recline from the position he took-Central London Property Trust Ltd v High
Trees 1947 KB 130. Also the case of AG Rivers v AG Akwa-Ibom 2011 All FWLR Part
579 1023 at 1054. This is also known as equitable estoppel. See Section 169 of the EA.
The elements include:
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Representation.
Reliance.
Alteration.
There is a limitation to estoppel by conduct: it can only be invoked by the defendant. Ude
v Osuji 1998 13 NWLR At 580
ESTOPPEL BY STANDING BY
Just like the name: you cannot stand by and allow others to fight your battle. E.g. certain
hectares of land belong to your family and two other families are fighting one another
over the land. you stand by to watch the fight and wait for the court’s judgment. You are
deemed to have stood by.
A person standing by to allow others fight his battle is estopped from laying claim to any
entitlement. This applies mostly in land cases. See Nigerian Air Force v Akukalia 2008
All FWLR part 441 967. A party intending to rely on estoppel by standing, must plead it
otherwise the court would not entertain it. See the case of Bello v Fayose 1999 11 NWLR
part 533 1839 at 1856.
ESTOPPEL BY AGREEMENT.
Section 170 EAct. This applies when someone had entered into an agreement… he is
estopped from denying the content of that agreement. This applies mostly in landlordtenant situations. The tenant is estopped from denying the landlord’s title. The tenant here
is usually that which has to do with acres of land. Like those that have been on the land
for many years. They do not pay money but give something to just recognise overlord’s
title.
Payment of rent is an acknowledgment of the landlord’s title. It may not be in money.
Doede Bristow v Pegge 1785 1 TR 7589.
ESTOPPEL BY DEED.
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Where any party has entered into an agreement by deed, he/his privies are not entitled to
deny same. Booman v Taylor 1834 2 A and E 278 at 291. The deed must be valid at
law… i.e. signed sealed and delivered.
OTHER TYPES OF ESTOPPEL
Section 170 for estoppel of licensee.
Section 171 estoppel for bailee.
Estoppel of person signing bill of lading-Section 172
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