LAW OF EVIDENCE PAST QUESTIONS AND ANSWERS
BY
AMOS ISAJINI
QUESTIONS
1(a)
Lebari, a renowned and distinguished Pharmacist sued Ntete in the High Court of
Rivers State for publishing a defamatory article about him in the Pharmacy
magazine. In the said suit. Liberia claimed N100M as damages and also sought
declaratory and injunctive reliefs against Ntete. Ntete consulted you to represent
him as Counsel.
List out of the areas where you need to get details from Ntete in order to prepare his
defence regarding the person of Lebari and his claims. Explain the legal implications
arising from same based on the Evidence Act. Ensure that you support your answer
with relevant provision of the Evidence Act, 2011 and case laws.
(b)
A Counsel and Litigants must the wary in planning ahead of trial to rely on evidence
of character in defending or prosecuting a case in a Court of Law.
Examine the above assertion in the light of relevant provisions of the Evidence Act,
2011 and existing case laws.
2(a)
Gote instituted Suit No PHC/8CC/2020 against Excel Petroleum and Development
Company Nigeria Limited for the pollution of his farm situate at B.Dere in Gokana
Local Government Area of Rivers State. In the course of the xxxxxx, there was need
for an expert’s opinion regarding the value of crops damaged, earnings and loss
income.
Gote after the evidence of two of his witnesses sought for an adjournment for him
to procure a valuation report containing an expert’s opinion on the areas mentioned
above, consequently, he consulted a firm of Estate Surveyor and Valuers. Peter
Dede, an Estate Surveyor and Valuer led his team to carry out the valuation required
and prepared a valuation report but could not tender same in court as he became
incapacitated after the exercise. Okon Akpan is not an Estate Surveyor and Valuer
but had worked in the said firm of Estate Surveyors and Valuers for over 25yeras
and has cognate experience. Learned Counsel to Gote on the resumed date in Court
presented Okon Akpan to give evidence as an expert and a tender the valuation
report in place of Peter Dede.
Highlight the likely areas of contention as to Okon Akpan giving evidence as an
expert and also the admissibility of the valuation report. Also explain how the
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Evidence Act, 2011 may be relied upon to deal with the contention aforesaid.
Support your answer with relevant provisions of the Act and exiting case laws.
(b)
With the aid of relevant statutes and judicial authorities. discuss the evidential value
of an expert’s opinion on a point requiring the Court to form its own opinion in a
judicial proceeding.
3(a)
Ikechukwu, a brilliant student in LLB IV class of Faculty of Law, Rivers State
University travelled home after his first semester examinations and was embraced
by his aged litigious father who was revising his case file in preparation to give
evidence in court over a land matter.
He asked Ikechukwu to explain how he can use oral evidence to vary the content of
a document tendered earlier by his opponent in the case. Assuming you are in the
position of lkechukwu answer the question of his aged father and also educate him
properly on what qualifies as document.
b)
A document does not qualify as a certified copy of public document for the purpose
of admissibility, except in compliance with the Evidence Act, 2011. With the aid of
statutory authorities, highlight the conditions for admissibility of public documents,
and explain the circumstances under which foundation would be laid before,
tendering a document.
4.
Chief Odumodu is known story teller in Nkpolu village. While passing by the house
of Dr. Obi Wune, a renowned medical doctor in Nkpolu village, Chief Odumodu
overheard him screaming in a loud voice ‘‘Oh Awute, it’s you? You masked your
lace? Please don’t stab me! Chief Awute, you have killed me!”
Swiftly time masked assassins escaped through the back door and wall fence of Dr.
Obi Wune, whose body was found dismembered in a pool of his own blood. One
hour later, the villagers who ran after the assailants saw a police van and stopped
by, only to discover that the police had arrested 3 men who were removing their
face masks by the lonely track road in the outskirt of Nkpolu village. It turned out
that they had daggers and intoxicating substances in their bags, and one of them was
identified as Awute, a notorious gaagster from the village.
The 3 men have been charged to court for murder of Dr. Obi Wune and Chief
Odumodu, who was called to testify, adduced evidence of what he heard Dr. Obi
Wune say when he was being assassinated, but the Defence Counsel raised objection
that it was hearsay evidence because the Chief was famous for telling such stories
and that he was not visibly present at the scene of the crime.
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a)
As prosecution Counsel, using decided cases and statutory authorities
respond to the said objection to convince the court on why Chief Odumodu’s
testimony is admissible.
b)
Hearsay evidence is generally inadmissible in law, because of some
mischief’s. How true is this statement? Highlight the mischiefs and state at
least live exceptions to the mischiefs with the aid of statutory authorities and
decided cases.
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(a)
(b)
Discuss the sources and classification of Nigerian Evidence Law.
With the aid of decided cases and statutory provisions distinguish Direct
Evidence and Hearsay Evidence.
6 (a) With the aid of statutory provisions and decided cases, distinguish “Facts in Issue”
from ‘Facts relevant to Facts in Issue’. Discuss also their admissibility during Civil
and Criminal proceedings.
(b)
What is confession? In your opinion, how can the prosecution reduce the
foundational and legal consequences of retraction? Also under what circumstance(s)
will the court declare time confessional statement(s) invalid?
7 (a) With die aid of statutory provisions and decided cases, when can confession be
regarded as Hearsay Evidence.
7(b)
Write short notes on time followings
(a) Inconsistency Rule.
(b) Proof of voluntariness of confessional statement.
(c) Formal and informal admission.
ANSWERS
1a
The hypothetical question bothers on character evidence and its admissibility subject to the
provisions of the Evidence Act 2011 particularly in Civil proceedings. Under the circumstances,
in order to prepare a defence for Ntete against Lebari’s claim, the areas I need to get details on
about the claimant, Lebari are:
a. The reputation of Lebari amongst reasonable members of the society.
b. Whether the alleged defamatory article published about him (Lebari) is in fact true so as to
rely on the defence of justification.
Section 77 of the Evidence Act 2011 defines character to mean reputation as distinguished from
disposition. Thus, Character means reputation and is distinguished from disposition (the tendency
to behave in a particular way) or status (one’s social standing in the society either by reason of
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economic standing, positions occupied, qualifications etc See Haruna v COP). What the Law is
interested in is reputation and not status or disposition.
In the English case of Plato Films Ltd v Speidel, Lord Denning defined character to mean the
esteem in which a person is held by others who know him and are in a position to judge his worth.
Following this decision and the express provision of Section 77 of the Evidence Act 2011, the
House of Lords’ decision in Selvey v DPP where reputation was equated with disposition has no
place in our legal system on the construction of what amounts to character.
As a matter of general rule in civil cases, Section 78 of the Evidence Act 2011, expressly provides
that character evidence is inadmissible in civil cases except in so far as such character appears
from facts otherwise relevant. According to Jerry Amadi in his book, Contemporary Law of
Evidence in Nigeria Volume 1 (page 706), the rationale for the inadmissibility of character
evidence lies in the fact that it is irrelevant, it detracts from the main issue in controversy, and it is
likely to prejudice the mind of the fact-finder, in the case of Nigeria, the trial court.
The above general rule is however subject to the following exceptions:
a. Where the character of a party may affect the quantum of damages that may be awarded
by the court.
b. Where in an action for libel and slander, the defendant relies on the defence of justification
to show that the claimant is not worth what he is claiming as damages.
a. Where the character of a party may affect the quantum of damages that may be
awarded by the court: Section 79 of the Evidence Act 2011 provides that in civil cases,
the fact that the character of any person is such as to affect the amount of damages which
he ought to receive may be given in evidence. Similarly, Section 10 of the Evidence Act
2011 also provides that in proceedings where damages are claimed, any fact which will
enable the court to determine the amount of damages which ought to be awarded is relevant.
Explaining this principle, the English court in the case of Scott v Sampson held that general
evidence seems in principle to be admissible, as immediately as necessarily connected with the
question of damages… To enable the jury to estimate the probable quantum of injury sustained, a
knowledge of the party’s previous character is not only material, but seems to be absolutely
essential.
It must be noted that the purpose of Section 79 of the Act is that it allows evidence of character to
be admissible not for the purpose of defeating any claim made on the other side, but to mitigate
the costs or damages which a successful party will ordinarily be entitled to. In the case of
Butterworth v Butterworth, the petition of the wife centered on the bad character of the
respondent. The respondent on his part led evidence to show that the petitioner had been of bad
character. It was held that the evidence of the petitioner’s bad character was admissible in
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mitigating damages against him. Similarly, in the case of Din v African Newspapers Ltd, the
appellant’s action for defamation failed because the respondent was able to establish that what was
published about the plaintiff was true and the appellant admitted to his own bad character under
cross-examination.
b. Where in an action for libel and slander, the defendant relies on the defence of
justification to show that the claimant is not worth what he is claiming as damages:
Section 80 of the Evidence Act 2011 provides for circumstances when the defendant does
not assert the truth of the statement complained of but is seeking to give evidence of
character with a view to mitigating damages. The uniqueness of Section 80 of the Evidence
Act includes the following:
1. The Section applies exclusively to actions for defamation, that is actions for libel or
slander.
2. The Section applies where the defendant does not assert the truth of the injurious statement.
3. The Section applies where the defendant intends to produce evidence that will mitigate the
damages awardable to the claimant, which is possible on the ground of the circumstances
leading to the publication, or on the grounds of the claimant’s own character.
For a defendant to rely on the covering of Section 80 of the Act, he/she must:
a. Seek leave of the court.
b. Must furnish particulars to the plaintiff of the matters of which he intends to lead evidence
on at least seven (7) days before the date of trial.
In the instant case, the action of Lebari, the claimant against my client is for defamation to the tune
of #100M as damages, including other declaratory and injunctive reliefs against my client Ntete.
Although Section 78 of the Act excludes the admissibility of the evidence of character of the
claimant, Lebari, since it is an action where the question of damages is in issue (as an exeception
under Section 79 of the Act) and the action is for libelous defamation (as an exception under
Section 80 of the Act), I shall obtain from my client relevant facts about the character of the
claimant to show that the statement published about him is true or that his reputation before
reasonable members of the society is not such as will entitle him to #100M from my client
assuming his claim succeeds.
In conclusion, I shall urge the court relying on the provisions of Sections 79 and 80 of the Evidence
Act 2011 to hold in favour of the defendant, a finding of justification or in the alternative, reduce
the damages claimed by the claimant on the grounds that he is not entitled to the sum in question.
1b
The rationale for the inadmissibility of character evidence in civil proceedings holds true in
criminal proceedings as well, which is that evidence of character may be highly prejudicial to the
case of the defendant. The rules relating to the admissibility of character evidence in criminal
proceedings are therefore more technical compared with civil proceedings.
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Two provisions which are germane to this discussion are Sections 81 and 82 (1) of the Evidence
Act 2011. Section 81 provides that in criminal proceedings, evidence of the fact that a defendant
is of good character is admissible. It should be noted that the evidence of good character must
relate to the facts in issue before the court. Where a defendant is charged with an offense bothering
on sexual assault, the evidence of the defendant’s honesty is not relevant. Evidence of honesty may
become useful in a charge for theft related offenses. Thus, in the case of R v Shrimpton, it was
held that the character proved must be of the specific type impeached. In a charge of dishonesty,
the defendant must be shown to be dishonest. Similarly, in R v Swendsen, it was held that the
character proved must relate to a period proximate to the date of the alleged offense. In other
words, evidence of the defendant’s honesty in 1990 may not aid him in a charge of dishonesty
which came up in 2020, 30 (thirty) years later.
In the case of Haruna v Commissioner of Police, the defendant was charged with stealing. His
bank manager testifies thus: I know the accused’s financial background. He is financially sound.
Since I have known the accused I don’t remember him getting involved in any trouble. The learned
trial judge disregarded this evidence but on appeal, the court held that the testimony of the witness
qualifies as evidence of good character. The English Court of Appeal in the case of R v Longman
stated that, when evidence is properly given as to the good character of the defendant, this evidence
goes to credibility and that the jury should be instructed that they may treat a proved character as
an indication that the witness is likely truthful.
On the other hand, Section 82 (1) provides that except as provided in this Section (82 (1)), evidence
of the fact that the defendant is of bad character is INADMISSIBLE in criminal proceedings. Thus,
while evidence of a defendant’s good character is admissible on the one hand, evidence of his bad
character is not admissible.
However, by the provisions of Section 82 (2) (b), evidence of a defendant’s bad character becomes
admissible when the defendant has given evidence of his good character. Indeed, “A Counsel and
Litigants must be wary in planning ahead of trial to rely on evidence of character in defending or
prosecuting a case in a Court of Law”. This is so because the moment a defendant in a criminal
suit tenders or relies on the evidence of his good character, he opens the gate for the prosecution
to lead evidence of his bad character as was held in the case of R v Mcleod. Thus, in criminal
proceedings, evidence of character should be cautiously taken as it may boomerang on the
defendant. This explains why Fidelis Nwadialo in his book, Modern Nigerian Law of Evidence (p.
183) described evidence of good character in criminal proceedings as a “two-edged weapon”.
It should be noted that evidence of good character is not a ticket to acquittal. Where the prosecution
has proved its case beyond reasonable doubt, the good character of the defendant may not avail
him much. However, where the prosecution is unable to establish a case against the defendant,
then as was noted by the English court in the case of R v Bellis, evidence of good character
becomes something which (the court) must take into account in favour of the defendant on the
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basis that a person of good character is less likely to commit the type of offence than a man of bad
character.
As pointed out above, Section 81 provides that in criminal proceedings, evidence of the fact that
a defendant is of good character is admissible. However, Section 82 (1) provides that except as
provided in this Section (82 (1)), evidence of the fact that the defendant is of bad character is
INADMISSIBLE in criminal proceedings. Thus, the inadmissibility of the evidence of bad
character admits of the following exceptions under the Evidence Act:
1. Under Section 82 (2) (a) of the Act, where the bad character of the defendant is a fact
in issue: The character of a defendant will be a fact in issue when the Section which created
the offence requires the evidence of bad character as an element of the offence. What is
required here is that the bad character of the defendant must be a FACT IN ISSUE and
not merely A FACT RELEVANT TO THE FACT IN ISSUE. Where the bad character of
the defendant is a fact in issue, it means that it must be proved for the prosecution to
succeed. In such a case, the evidence of bad character of the defendant becomes a necessity
in establishing the case of the prosecution. For instance, for a person to be convicted of
being a rogue or a vagabond, the prosecution must adduce evidence that the person had
been previously convicted of an offence under Section 249 and 250 of the Criminal Code.
In the English case of R v Tirnaveanu, the respondent contended that his conviction was
based on evidence of his bad character which was given. Although the Court of Appeal set
aside his conviction in part, it held that the reception of the evidence of his bad character
was proper because his bad character was a fact in issue.
2. Under Section Section 82 (2) (b) of the Act, where the defendant has given evidence
of his good character: The rationale for this exception is that the prosecution can rebut
the claim of the defendant as to good reputation by leading evidence of his bad character.
Thus, the moment the defendant gives evidence of his good character, he puts his character
in issue and the prosecution is entitled as of right to tender evidence of his bad character.
The case of R v Winfield is often cited as an authority on this rule. The defendant was
charged with indecent assault on a woman. He gave evidence of his good character in
relation to women, whereupon the prosecution summoned evidence of his general
character, which was bad. The defendant contended that evidence of his bad character was
improperly obtained. It was held that if a man chooses to put his character in issue, he must
take the consequences. Thus, evidence of his bad character was properly admitted. Where
under Section 82 (2) (b), the evidence of bad character is not issue neither did the defendant
give evidence of his good character, the prosecution CANNOT give evidence of the
defendant’s bad character. Thus, in the case of R v Thomas, the defendant was charged
with forgery. The prosecution called a witness who testified as to the defendant’s
systematic trafficking of import licences. There was no evidence on record showing that
the defendant gave evidence of his good character. The trial judge relied on the evidence
of his good character to convict the defendant but this was set aside on appeal. Similarly,
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in the case of Lawal v State, the appellant was charged with murder. The prosecution called
a witness who testified that the defendant and his friends were known to him as “Ohio”
boys or thugs. The trial judge convicted the appellant on the basis of such evidence of bad
character. On appeal, it was set aside and the Court above held that the prosecution called
evidence showing that the appellant was a man of bad character, given to acts of violence,
and cross-examined the appellant to the same effect, although none of the circumstances
in which evidence or such questions are admissible were present… Thus, the exception,
such as the appellant given evidence of his own bad character which would have justified
the admissibility of evidence of his bad character was absent.
3. Under Section 82 (3) of the Act, where the defendant is cross-examined under the
provisions of Section 180 of the Evidence Act: Paragraph (g) of Section 180 of the
Evidence Act provides that a person charged under Section 180 shall not be required to
answer any question showing that he is of a bad character unless: (i) the proof that he has
committed or been convicted of a similar offence is admissible to show that he is guilty of
the offense with which he is charged, or (ii) he has asked questions of the prosecution
witnesses with a view to establishing his good character (iii) he has given evidence against
any other person charged with the same offence. The provisions of Section 83 (3) and
Section 180 (g) are mutually exclusive and must be read together. The following conditions
must be noted:
a. Section 83 (3) contemplates a scenario that will only play out during cross-examination.
b. The trial must involve more than one defendant.
c. One of the defendants must have given evidence against his co-defendant.
d. One of the defendants has during cross-examination either personally or through his
lawyer, asked questions trying to establish his good character from the prosecution
witnesses.
In conclusion, admissibility of character evidence is in criminal cases is very dicey. The good
character of a defendant is admissible as of right but this right must be carefully considered before
being explored because it may boomerang, as it opens the defendant to questions relating to his
bad character. In any case, once character evidence is pleaded as a formal evidence in court, it
acquires a probative value of its own. It can weigh on the mind of the court to affect the sentence
of the court. It has the capacity to prove a substantive case in a court of law.
2a
The question touches on expert opinion under the Evidence Act 2011. Accordingly, the likely areas
of contention or issues that may arise are:
1. Whether Okon Akpan qualifies as an expert or as a person so skilled under Section 68 (2)
of the Evidence Act to give expert evidence under the circumstances.
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2. Whether the valuation report can be tendered by Okon Apkan having regards to the rules
of hearsay evidence as provided under Sections 37 and 38 of the Evidence Act 2011.
3. The admissibility of the valuation report under Section 83 of the Evidence Act as a
documentary evidence having regards to the fact that the make, Peter Dede cannot be called
to tender it.
The Black’s Law Dictionary defines expert evidence as evidence about a scientific, technical or
professional issue given by a person qualifies to testify because of familiarity with the subject or
special training in the field. Similarly, the court in AG Federation v Abubakar also defined an
expert as any person specially, skilled in the field he is giving evidence. The litmus test for
determining who is an expert is better captured by the questions of Lord Russel in the case of R v
Silverlock and the questions are: “Is he peritus? Is he skilled? Has he an adequate knowledge?”.
An expert is therefore not necessarily a question of professional qualification but a test of skill,
experience which is acquired from practice in a given field.
Section 67 of the Evidence Act expressly provides that the opinion of any person as to the existence
or non-existence of a fact in issue or relevant to the fact in issue is inadmissible subject to the
exceptions under the Act. The rationale for this exclusion was captured by the court in the case of
ANPP v Usman when the court held that witnesses are called only to state facts and not to draw
inferences from facts. However, as was held in the case of R v Turner, where the court has to form
an opinion on a matter that is outside the knowledge of the court, the opinion of experts becomes
useful as a guide to the court.
Accordingly, Section 68 of the Evidence Act provides that when the court has to form an opinion
on points of foreign law, customary law or custom, or science or art, or as to identity of handwriting
or finger impressions, the opinions of persons skilled in these areas becomes handy.
With respect to issue one, it is whether Okon Akpan qualifies as an expert or as a person so skilled
under Section 68 (2) of the Evidence Act to give expert evidence under the circumstances. In the
case of Damina v Akpan, the court held that an expert is not a question of professional qualification
but rather, it is his experience and skill that matters. The crucial question is that raised by Lord
Russel in the case of R v Silverlock and the questions are: “Is he peritus? Is he skilled? Has he an
adequate knowledge?”. Furthermore, in the case of AG Federation v Abubakah, the court
explained that it is sufficient if an expert is competent, diligent and specifically skilled in the field
he is giving evidence.
In the instant case, although Okon Akpan is not a trained professional Estate Surveyor and Valuer,
he has worked with a firm of Estate Surveyors and Valuers for over 25 years and has cognate
experience. Thus, having acquired experience from working with a firm of Estate Surveyors and
Valuers for over 25 years, Okon Akpan qualifies as an expert for the purpose of giving expert
evidence regarding the crops damaged, earning and loss of income following the suit instituted by
Gote against Excel Petroleum Producing and Development Company Nigeria Ltd. What is crucial
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is not whether he is a professional but whether he is peritus, skilled or has an adequate knowledge
on the subject matter.
With respect to issue two, it is whether the valuation report can be tendered by Okon Apkan having
regards to the rules of hearsay evidence as provided under Sections 37 and 38 of the Evidence Act
2011. Hearsay evidence by virtue of Section 37 of the Evidence Act 2011 refers to the testimony
of a witness who does not have personal knowledge of the facts which he tenders in evidence and
which he tenders for the purpose of proving the truth of the matters contained therein. In the case
of Subramaniam v Public Prosecutor, the court held that evidence of a statement made to a
witness by a person who is not himself called to testify is hearsay and inadmissible when the object
of the evidence is to establish the truth of what is contained in the statement. Hearsay evidence is
inadmissible under Section 38 of the Evidence Act 2011.
In the instant case, the valuation report prepared by Peter Dede after his valuation will amount to
hearsay in the hands of Okon Akpan where he seeks to tender it for the purpose of proving the
truth of the report contained in it. Thus, it is rendered inadmissible for being a hearsay statement.
However, Section 39 of the Evidence Act provides that statements made, whether oral or written
of relevant facts in issue made by a person who is dead, cannot be found, has become incapable of
giving evidence or whose attendance cannot be procured without delay or expense is admissible
as an exception to hearsay. More specifically, Section 41 makes statements made in the course of
business admissible provided the maker made the statement at the same time when the transaction
occurred, so as to show that the transaction was still fresh in his memory.
In the instant case, Peter Dede who prepared the valuation report in the normal course of his
business of Estate surveying and valuation is dead and cannot be called to give evidence. Thus,
Okon Akpan is covered by this exception and is entitled to give evidence as to the contents of the
valuation report.
Furthermore, issue three is the admissibility of the valuation report under Section 83 of the
Evidence Act as a documentary evidence having regards to the fact that the make, Peter Dede
cannot be called to tender it. The law is that only the maker of a document can tender it in evidence.
In Lambert v Nigeria Navy, it was settled that only the maker of a document can tender it in
evidence. The rationale as was stated in Opolo v State is that only the maker of a document can
withstand the fire of cross – examination as to the contents of a document authored by himself.
However, the exceptions are: where the maker is dead and where it will be very difficult or
expensive to bring the maker to court. This position is contained in Section 83 of the Evidence
Act 2011.
Thus, since the maker of the valuation report is no longer alive, Okon Akpan is entitled to tender
it under the circumstances.
In conclusion, Okon Apkan qualifies as an expert under the circumstances and can tender the
valuation report prepared by Peter Dede.
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2a
The scope of this question bothers on the relevance, admissibility and probative value of an expert
opinion under the Evidence Act 2011.
Generally, Section 67 of the Evidence Act renders the evidence of an expert inadmissible under
the Act. The rationale for this exclusion was captured by the court in the case of ANPP v Usman
when the court held that witnesses are called only to state facts and not to draw inferences from
facts. However, as was held in the case of R v Turner, where the court has to form an opinion on
a matter that is outside the knowledge of the court, the opinion of experts becomes useful as a
guide to the court.
Accordingly, Section 68 of the Evidence Act provides that when the court has to form an opinion
on points of foreign law, customary law or custom, or science or art, or as to the identity of
handwriting or finger impressions, the opinions of persons skilled in these areas becomes handy.
Flowing from the provisions of Section 1 of the Evidence Act, relevance is the root, basis and test
for the admissibility of any piece of evidence. It follows that in circumstances where the opinion
of an expert is admissible to aid the court in forming an opinion, the expert evidence must be
relevant to the facts in issue. Where the evidence of an expert is admissible on the basis of its
relevance, it is for the court to attach probative value to it.
The evidential value of an expert’s evidence will be guided by the following:
1. Expert opinion must be direct and not based on hearsay. Section 126 (d) of the Evidence
Act provides that where a piece of evidence relates to an opinion or the grounds of such
opinion, it must be the evidence of the person who holds that opinion and on those grounds.
2. An expert must state the grounds for his opinion. This was the position of the court in the
case of Arisa v State. In the case of Ode v Osuji, the court held that an expert must
demonstrate to the court the basis of his conclusion.
3. The expert must tender his evidence personally and not through a third party. This is based
on the principle that only the maker of a document can tender it in court. This is however
subject to the exceptions provided under Sections 39, 41 and 83 of the Evidence Act 2011.
4. The opinion of the expert must be consistent with other evidence tendered before the court.
Where the expertise of a witness’s opinion is not in question and the opinion is relevant to the facts
in issue, the evidential value will be high. However, where the opinion of an expert on a point is
conflicting, not properly founded, irrelevant to the facts in issue, such evidence of opinion will not
enjoy probative value before the court.
In conclusion, the evidential value of an expert’s opinion on a point requiring the Court to form
its own opinion in a judicial proceeding is dependent amongst other things on its relevance, the
directness, the pedigree of the expert, the grounds for his conclusions and the legal admissibility
of the expert’s evidence under the law.
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3a
Section 258 (1) of the Evidence Act 2011 gives an elaborate meaning of a document and it
includes books, maps, photographs, or anything expressed or described upon any substance by
means of letters, figures or marks etc. It also covers discs, tapes, sound tracks or other device in
which sound or other data are contained; any film, negative tape or other device in which one or
more visual images are embodied so as to be capable of being produced from it and any device by
means of which information is recorded, stored or retrievable including computer output.
The above definition as contained in Section 258 of the evidence Act was given judicial flesh in
the case of P.D. Hallmark Contractors Nig. Ltd & Anor v Gloria Kanrotmwa Gomwalk. Thus, a
document presupposes that which is produced (by way of writing, drawing, impression etc) either
in a book or upon any substance which would be of course tangible. Worthy of note also is the fact
that a computer and whatever is generated from it qualifies as a document but this was not so under
the old Evidence Act of 2004. This explains why in some cases (such as UBA Plc v Abacha
Foundation; Yesufu v ACB etc) the court held that computer generated evidence was
inadmissible.
Furthermore, a document may be primary or secondary. Section 86 (1) of the Evidence Act 2011
provides that primary document means the document itself produced for the inspection of the court.
While a secondary document includes certified copies given under the Act; copies made from the
original; copies made from or compared with the original etc.
Documentary evidence is a very crucial to judicial proceedings (both civil and criminal). This is
because a document speaks for itself and save for some exceptions, it is not easy to contradict what
is contained in a written document. This way the decision of the court in the case of Goyor v INEC.
Thus, Section 128 (1) of the Evidence Act 2011 provides that no evidence may be given to
contradict a documentary evidence. In the case of Lagos Timber Co. Ltd v Titk Combe, the
plaintiff who sought to give oral evidence to contradict a contract which was reduced into writing.
It was held that such oral evidence was inadmissible. It must be noted that the principle established
in Section 128 (1) of the Evidence Act 2011 is not limited to oral evidence. In the case of Union
Bank of Nigeria v Ozigi, the Supreme Court observed that the rule enacted in the Section (128) is
not limited to oral evidence alone but extends to extrinsic evidence in writing such as drafts of
agreements, preliminary agreements and letters relating to previous negotiations.
The above principle is not however without exceptions. Thus, under certain circumstances, a
documentary evidence may be contradicted, varied, or altered by oral evidence under the following
circumstances:
a. Oral evidence may be admitted to prove fraud, intimidation, illegality, want of due
execution, wrongly dated documents, mistake in law or facts, want of capacity of a
contracting party etc. Thus, in the case of Dantata v Mohammed, it was held that where
reliance on parties’ oral evidence would not only affect the validity of the document, but
12
would also determine the entitlement of one of the parties to judgment, same is admissible,
not to contradict the agreement, but to add to its validity.
b. Oral evidence is also admissible to prove the existence of any matter on which a document
is silent, and which is not inconsistent with its terms, if from the circumstances of the case
the court infers that the parties did not intend the document to be a complete and final
statement of the whole of the transaction between parties.
c. Oral evidence is also admissible to prove any usage or custom by which incidents not
expressly mentioned in any contract are annexed to contracts of that description, unless the
annexing of such contract is repugnant to or inconsistent with the express terms of the
contract.
In the instant case, Ikechukwu’s father cannot use oral evidence to vary the contents of the
document tendered by his opponent in the suit as a matter of general rule (Section 128 of the
Evidence Act 2011). This is so because a documentary evidence speaks for itself. It is clear on the
face of it and cannot be contradicted or varied, save for the exceptions outlined above. Thus, my
advice to my father if I were to be Ikechukwu is that he cannot use oral evidence to contradict the
document of his opponent tendered in court except in a case that comes within any of the
exceptions provided under the Law.
3b
Section 102 of the Evidence Act defines a public document as documents forming the official act
or records of:
1.
2.
3.
4.
The sovereign authority,
Official bodies and tribunals,
Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
Public records kept in Nigeria of private documents.
It is the duplicate or photocopy of public documents that is usually tendered in evidence. The
photocopies of public documents are only admissible after going through the process of
certification. Thus, Section 104 of the Evidence Act 2011 which contains the
requirements/conditions for the admissibility of public documents provides as follows:
a. Under Section 104 (1), every public officer having the custody of a public document which
any person has a right to inspect shall give that person on demand, a copy of it upon
payment of the legal fees prescribed, together with a certificate written at the foot of such
copy that it is the true copy of such document or part of it as the case may be.
b. Under Section 104 (2), the certificate shall be dated and shall contain the name of the
officer and his official title, and shall be sealed, whenever such officer is authorized by law
to make use of a seal, and such copies so certified shall be regarded as certified copies.
13
c. Under Section 104 (3), an officer who, by the ordinary course of official duty, is authorized
to deliver such copies, shall be deemed to have the custody of such documents within the
meaning of the Evidence Act.
Thus, one of the major conditions for the admissibility of a public document is that it must be
certified. In the case of Adeyefa & Ors v Bamgboye, certification was defined to mean
authenticating or vouching for a thing in writing, to attest to as being true as represented.
4a
The hypothetical question bothers on the admissibility of a dying declaration as an exception to
the inadmissibility of hearsay evidence under Section 40 of the Evidence Act 2011. Hearsay
evidence by virtue of Section 37 of the Evidence Act 2011 refers to the testimony of a witness
who does not have personal knowledge of the facts which he tenders in evidence and which he
tenders for the purpose of proving the truth of the matters contained therein. This evidence is
manifestly inadmissible under Section 38 of the Evidence Act.
However, Section 39 of the Evidence Act provides that statements made by persons who cannot
be called as witnesses either by reason of death, incapacity to give evidence, persons who cannot
be found or where it will be difficult to bring them to court may be given by a third party and such
evidence will not be caught by the watchful eyes of Section 38 which excludes the admissibility
of hearsay evidence. The statement of dying man as to his cause of death under Section 40 of the
Evidence Act 2011 comes within the warmful embrace of Section 39 of the Evidence Act 2011,
because the maker (who is already dead) cannot be called to testify in court. Within the context of
discussion, a dying declaration refers to a statement of a deceased relating to his cause of death
and by whom, made in extremity when the deceased was at the point of death.
The rationale for the admissibility of the dying declaration of a deceased person was succinctly
captured in the English case of R v Woodcock, where the court explained that the general principle
on which this species (referring to dying declarations) of evidence is admitted is that they are
declarations made in extremity when the party is at the point of death, and when every hope of this
world is gone; when every motive of falsehood is silenced, and the mind is induced by the most
powerful consideration to speak the truth; a situation so solemn and so awful is considered by law
as creating an obligation equal to that which is imposed by positive oath administered in a court
of justice.
Thus, the law considers that although a man, in his frailty is prone to tell lies, but not when he is
in the pains of death and the thoughts of cooking up what is untrue is far from him. This is
particularly so when what he says relates to his killer or the circumstances of his death. The weight
the law attaches is the same applicable to a witness who is put on oath and duty bound to tell the
truth.
14
In the case of Isiekwe v State, the Court outlined the following conditions for the admissibility of
a dying declarations which are:
1. The declaration must relate to the cause of death of the deceased and must be relevant to
the facts in issue.
2. The declarant must have died and the cause of his death must be a fact in issue before the
court.
3. The declarant must have believed himself to be in apprehension of or in the danger of
approaching death.
In the case of R v Ogbuewu, the deceased who was severely beaten was asked by a Police officer
taking his statement if he believed he was going to die. The deceased said: “I don’t know whether
I am going to die”. It was held that the deceased never believed himself to be in apprehension of
death. The case of Garba v The Queen demonstrates the principle that for dying declaration to be
admissible, the declarant must have believed himself to be in apprehension of or in the danger of
approaching death. In that case, the deceased was beaten by his assailants and left by the side of
the road. The person who came to his rescue asked him what happened and he managed to mention
one of his assailants. Subsequently, he was taken home and after having first aid and regaining
consciousness, he was able to narrate his ordeal and the names of all his assailants. He eventually
died. It was held that the earlier statement while he was almost unconscious qualified as a dying
declaration and not the subsequent statement made after he had gained consciousness. In the
former, it could be said that he must have believed himself to be in apprehension of or in the danger
of approaching death but not after receiving first aid and gaining strength. However, in the case of
Akpan v State, the deceased was heard shouting “SUNDAY HAS KILLED ME”. This statement
was admitted as a dying declaration.
Furthermore, in admitting a dying declaration, the court is strict in ensuring that the exact words
of the deceased are recounted in court. Any inconsistency will render a dying declaration
inadmissible. For instance, in the case of Hausa v State, one of the witnesses testified that the
deceased said “Hausa has shot me, Hausa has shot me”. Another testified that the deceased said
“Hausa it is you that shot me, Hausa it is you that shot me, Hausa you killed me”. It was held that
the dying declaration of the deceased was inadmissible.
In the instant case, the statement of the deceased, Dr. Obi Wune saying “Oh Awute, it’s you? You
masked your face? Please don’t stab me! Chei Awute, you have killed me!” qualifies as a dying
declaration under Section 40 of the Evidence Act 2011. This is so because it was made by the
deceased, Dr. Obi Wune in apprehension of death and the statement related to the cause of his
death and by whom (Awute) he died. That being the case, Chief Odumodu, who has a direct
evidence of the exact words of the deceased, Dr. Obi Wune may tender his (deceased’s statement)
in court even though he is not the maker.
Although the statement amounts to hearsay under Section 37 of the Evidence Act and is
inadmissible under Section 38 of the Evidence Act 2011, it comes within the saving hands of
15
Section 39 of the Evidence Act 2011 and is therefore admissible for the purpose of establishing
the murder of the deceased, Dr. Obi Wune by his alleged murderer, Awute.
Conclusively, the contention of the defence counsel that Chief Odumodu was famous for storytelling and that he was not visibly present at the scene of the crime cannot hold water. Chief
Odumodu’s testimony as to the dying declaration of the deceased, Dr. Obi Wune saying “Oh
Awute, it’s you? You masked your face? Please don’t stab me! Chei Awute, you have killed me!”
is admissible and may be relied on the court in making a finding as to Dr. Obi Wune’s death and
by whom he was killed.
4b
Hearsay evidence by virtue of Section 37 of the Evidence Act 2011 refers to the testimony of a
witness who does not have personal knowledge of the facts which he tenders in evidence and which
he tenders for the purpose of proving the truth of the matters contained therein. This evidence is
manifestly inadmissible under Section 38 of the Evidence Act.
In the case of Subramaniam v Public Prosecutor, the court held that evidence of a statement made
to a witness by a person who is not himself called to testify is hearsay and inadmissible when the
object of the evidence is to establish the truth of what is contained in the statement. Thus, what
makes a statement hearsay is the object, purpose of tendering it in evidence. Where it is proposed
to establish by evidence, not the truth of the statement but the fact that it was made, it is not hearsay
and is legally admissible.
Hearsay evidence is legally inadmissible on the grounds of the following mischiefs:
a. The statement may have been doctored or altered.
b. Unreliability of the original maker of the statement.
c. Lack of opportunity of observing the demeanor of the maker of the statement which is
sought to be tendered.
d. The statement may have undergone the furnace of misrepresentation which renders it
different from what the original maker has said.
e. The difficulty or impossibility of ascertaining the truth or veracity of the statement.
The following therefore forms the premise for the exclusion of the admissibility of hearsay
evidence. However, to every rule in law, there is an exception. Thus, the following are five
exceptions to the inadmissibility of hearsay evidence:
1. Section 39 of the Evidence Act 2011: Statements of persons who cannot be called as
witnesses. This was upheld in the case of Hollington v Hewthorn & Co. Ltd.
2. Section 42 of the Evidence Act 2011: Statements made against the interest of the maker
with special knowledge. In the case of Alli v Aleshinloye, a statement by a family head
admitting the ownership of a disputed land by his adversary in an earlier suit was held to
be admissible when tendered by a third party.
16
3. Section 44 of the Evidence Act 2011: Statements relating to the existence of a
relationship. In the case of Anode v Mmeka, it was held that for this Section (44) to be
applicable, the maker of the statement must be relating by blood to the person who the
statement relates to and the fact in issue must bother on the pedigree of such person.
4. Section 45 of the Evidence Act 2011: Declarations by a testator. In the case of Sudgen v
Lord St. Leonard’s, oral testimony of the defendant while he was alive was given by his
daughter as to the contents of her father’s Will and was held to be admissible.
5. Section 66 of the Evidence Act 2011: Oral evidence relating to the ownership of family
or communal lands. In the case of Ewo v Ani, the Court of Appeal held that evidence of
oral history relating to ownership of land is ordinarily hearsay and should be inadmissible
but is made admissible by virtue of Section 66 of the Evidence Act 2011.
5a
The sources of the Nigerian law of Evidence are:
a.
b.
c.
d.
The Evidence Act 2011
The Constitution
Case laws
Received English Law.
a. The Evidence Act 2011: The Evidence Act is the alpha and omega on the question of
admissibility of evidence in Nigeria. It determines what amounts to evidence and the
circumstances under which evidence can be tendered. The provisions of Sections 1, 2 and
3 of the Evidence Act 2011 shows that the Evidence Act is the final bustop for the
determination of the relevance and admissibility of any piece of evidence. Under the
repealed Evidence Act of 2004, Section 5 (a) allowed the courts to make references to
English Law where there is a lacuna in our Evidence law. This position was given judicial
pontification in the case of Onyeawusi v Okpukpara. However, this position is no longer
correct because the provisions of Section 5 (a) of the repealed Evidence Act of 2004 was
deliberately deleted from the Evidence Act 2011. The jurisprudence behind this legislative
operation is that the Evidence Act 2011 is now the final finality for the determination of
what is evidence and issues of admissibility under our Nigerian legal system. Put more
clearly, the Evidence Act 2011 is the Stethoscope by which the evidential temperature of
all questions of evidence and admissibility are tested and settled.
b. The Constitution: By a community construction of Sections 1 (1) & (3) of the 1999
Constitution of the Federal Republic of Nigeria, the constitution is supreme and every
other law that is inconsistent with it is void to the extent of the inconsistency. This position
was judicially venerated in the celebrated case of AG Abia State v AG Federation. There
17
is therefore an irresistible presumption that all laws including the Evidence Act 2011
derives force and life from the Constitution. This is concretized by the fact that Evidence
is listed in Item 23 of the Exclusive Legislative List of Part 1 to the Second Schedule
of the 1999 Constitution, as a matter over which only the National Assembly can legislate
upon by virtue of Section 4 of the Constitution. This position was judicially ordained by
the apex court in the case of Fawehinmi v Abacha. Furthermore, there are some issues that
are common to both the Constitution and the Evidence Act 2011 which are: Fair hearing,
burden of proof and the right to silence. On the issue of fair hearing, Section 36 of the
Constitution requires that parties in a suit be given opportunity to defend themselves.
Similarly, under the Evidence Act 2011, both parties must be given opportunity to tender
evidence. The provisions of Section 214 of the Evidence Act which provides of
Examination-in-Chied, Cross-Examination and Re-Examination are rooted on fair hearing.
See Alsthom v Saraki. On the question of burden of proof, Section 36 (5) of the
Constitution presumes an alleged criminal to be innocent until the contrary is proven. This
shifts the burden of proof to the prosecution, being the party asserting the guilt of the
defendant. Thus, Section 36 (5) of the Constitution which provides for the presumption
of innocence is coextensive with Section 132 of the Evidence Act 2011 which provides
for the legal burden of prove on the party (prosecution) who asserts. Finally, Section 36
(11) guarantees the right of a defendant to be silent which right is also reinforced and
provided under Section 180 (g) of the Evidence Act 2011.
c. Case laws/Judicial Precedents: The courts are called upon to determine questions relation
to what amounts to evidence, relevance and the admissibility of evidence etc. The decisions
given by the courts particular on the interpretation of the Evidence Act, or subject matters
not covered by the Evidence Act etc become law and forms part of our jurisprudence on
the law of Evidence. For instance, prior to the advent of the Evidence Act 2011, it was
unsettled as to whether Computer generated evidence was admissible. In UBA Plc v
Abacha Foundation, it was held that Computer generated evidence was inadmissible.
However, in the case of FRN v Fani-Kayode, it was held that Computer generated
evidence was admissible. This issue was however settled by Section 84 of the Evidence
Act 2011 under which Computer generated evidence is now made admissible. Furthermore,
in the case of APGA v Al – Makura, the court held that an unsigned document is lacking
in value, worthless and has no evidential value. Similarly, in Lambert v Nigeria Navy, it
was settled that only the maker of a document can tender it in evidence. The rationale as
was stated in Opolo v State is that only the maker of a document can withstand the fire of
cross – examination as to the contents of a document authored by himself. However, the
exceptions are: where the maker is dead and where it will be very difficult or expensive to
bring the maker to court. This position is now also contained in Section 83 of the Evidence
18
Act 2011. Flowing from the above, through judicial interpretation, the court has developed
and will continue to develop our jurisprudence on the Law of Evidence.
d. English Law: Section 32 of the Interpretation Act Cap. I 23, Laws of the Federation
of Nigeria (LFN) 2004 provides for the applicability of the Common Law of England, the
Statutes of General Application made before 1st January, 1900 and the Doctrines of Equity
to be applicable in Nigeria subject to Local circumstances, such as where a law is in
existence which covers a particular subject matter. Thus, the English law of Parliament will
not apply to Nigeria because we already have a law on Evidence (Evidence Act 2011).
More so, Section 5 (a) which allowed the courts to make references to English Law where
there is a lacuna in our Evidence law has been removed from the Evidence Act of 2011.
However, the common law principles on Evidence remain useful to the courts when
interpreting and giving flesh to our Evidence Act of 2011. For instance, the principle
established in the case of Subramaniam v Public Prosecutor, where the court held that
evidence of a statement made to a witness by a person who is not himself called to testify
is hearsay and inadmissible when the object of the evidence is to establish the truth of what
is contained in the statement remains useful as a classical statement of law for the
determination of when a statement would amount hearsay.
CLASSIFICATIONS OF EVIDENCE
The classifications of Evidence are:
1.
2.
3.
4.
5.
6.
7.
Oral evidence
Hearsay evidence
Documentary evidence
Direct evidence
Original evidence
Circumstantial evidence
Real evidence.
1. Oral evidence: Oral evidence refers to the viva voce testimony of a witness which is
offered in proof of facts. It is key to all proceedings. Thus, Section 125 of the Evidence
Act 2011 provides that all facts, except the contents of a document may be proved by oral
evidence. Also, oral evidence, according to Section 126 of the Evidence Act 2011 must
be direct. That is, where it relates to a fact which can be heard, it must be the evidence of
a person who heard that fact; where it relates to a fact which can be seen, it must be the
evidence of a person who saw that fact; where it relates to a fact which can be perceived,
it must be the evidence of a person who perceived that fact; and where it relates to an
opinion, it must be the evidence of a person who holds such opinion and on those grounds.
Furthermore, oral evidence, by virtue of Section 205 of the Evidence Act 2011 is usually
given by oath of affirmation according to the Oaths Act of 2004. However, by Section 205
19
of the Evidence Act 2011, the fact that a person has no religious belief will not invalidate
his oral evidence.
2. Hearsay Evidence: Hearsay evidence by virtue of Section 37 of the Evidence Act 2011
refers to the testimony of a witness who does not have personal knowledge of the facts
which he tenders in evidence and which he tenders for the purpose of proving the truth of
the matters contained therein. This evidence is manifestly inadmissible under Section 38
of the Evidence Act. In the case of Subramaniam v Public Prosecutor, the court held that
evidence of a statement made to a witness by a person who is not himself called to testify
is hearsay and inadmissible when the object of the evidence is to establish the truth of what
is contained in the statement. Thus, what makes a statement hearsay is the object, purpose
of tendering it in evidence. Where it is proposed to establish by evidence, not the truth of
the statement but the fact that it was made, it is not hearsay and is legally admissible. The
inadmissibility of hearsay evidence is subject to the exceptions contained in the Evidence
Act.
3. Documentary Evidence: Section 258 (1) of the Evidence Act 2011 gives an elaborate
meaning of a document and it includes books, maps, photographs, or anything expressed
or described upon any substance by means of letters, figures or marks etc. It also covers
discs, tapes, sound tracks or other device in which sound or other data are contained; any
film, negative tape or other device in which one or more visual images are embodied so as
to be capable of being produced from it and any device by means of which information is
recorded, stored or retrievable including computer output. The above definition as
contained in Section 258 of the evidence Act was given judicial flesh in the case of P.D.
Hallmark Contractors Nig. Ltd & Anor v Gloria Kanrotmwa Gomwalk. It is one of the
best forms of evidence under the Law. Documentary evidence is very crucial to judicial
proceedings (both civil and criminal). This is because a document speaks for itself and save
for some exceptions, it is not easy to contradict what is contained in a written document.
This way the decision of the court in the case of Goyor v INEC. Thus, Section 128 (1) of
the Evidence Act 2011 provides that no evidence may be given to contradict a documentary
evidence. However, where there is fraud, mistake of law of facts, wrongs dates,
misrepresentations etc, oral evidence may contradict the contents of a document.
4. Direct Evidence: Direct evidence as opposed to hearsay evidence is the testimony of a
witness who has a personal knowledge of the facts which he testifies in court. It is not a
third party kind of evidence. Evidence will be said to be direct when according to Section
126 of the Evidence Act 2011, where it relates to a fact which can be heard, it is the
evidence of a person who heard that fact; where it relates to a fact which can be seen, it is
the evidence of a person who saw that fact; where it relates to a fact which can be perceived,
it is the evidence of a person who perceived that fact; and where it relates to an opinion, it
is the evidence of a person who holds such opinion and on those grounds. In the case of
Ahmed v State, direct evidence was defined as the evidence of a fact in issue flowing from
a witness who claims personal knowledge of the fact he testifies about. Similarly, in
20
Akinmoju v State, Karibi – Whyte JSC held stated that … there is no doubt the best
evidence is the direct testimony of assertion of a human being offered as proof of that of
which is asserted.
5. Original evidence: An original evidence is one that has a probative value of its own. As
opposed to hearsay evidence, evidence is said to be original where it is given to state the
facts of things as they occurred without delving into their truth.
6. Circumstantial evidence: This refers to the evidence of circumstances which when put
together, points to an irresistible conclusion as the existence or non – existence of a fact in
issue. The courts derive the power to draw conclusions from circumstances by virtue of
Section 167 of the Evidence Act 2011 having regards to the common course of natural
events, human conducts and day to day activities. Although circumstantial evidence is
applicable to both civil and criminal proceedings, it is mostly prevalent in criminal
proceedings particularly with respect to hidden crimes. It should however, be noted that
where there is a direct evidence on a fact in issue, circumstantial evidence is inapplicable.
This was the position in the case of Isibor v State where the court held that given the
admission of the appellant (direct evidence of guilt), evidence of circumstances was
inapplicable. Furthermore, the Supreme Court has also cautioned in the case of Udedibia v
State that circumstantial evidence must be carefully and narrowly interpreted so as to
prevent the conviction of an innocent man. For circumstantial evidence to be relied upon,
it must be cogent, it must be compelling, it must be consistent with the guilt of the
defendant, it must give no room for doubt and it must lead to a single conclusion regarding
the guilt or otherwise of the defendant.
7. Real Evidence: It applies to any material, tangible or physical object which is capable of
being tendered in court for the purpose of proving or disproving facts in issue. Section 127
(1) and (2) of the Evidence Act 2011 allows the court to inspect facts presented before it
or to visit the locus in quo in the case of objects that are immoveable. The essence of
visiting the locus in quo is to satisfy the eyes of what the ears of heard.
5b
Direct evidence as opposed to hearsay evidence is the testimony of a witness who has a personal
knowledge of the facts which he testifies in court. It is not a third party kind of evidence. Evidence
will be said to be direct when according to Section 126 of the Evidence Act 2011, where it relates
to a fact which can be heard, it is the evidence of a person who heard that fact; where it relates to
a fact which can be seen, it is the evidence of a person who saw that fact; where it relates to a fact
which can be perceived, it is the evidence of a person who perceived that fact; and where it relates
to an opinion, it is the evidence of a person who holds such opinion and on those grounds. In the
case of Ahmed v State, direct evidence was defined as the evidence of a fact in issue flowing from
a witness who claims personal knowledge of the fact he testifies about. Similarly, in Akinmoju v
State, Karibi – Whyte JSC held stated that … there is no doubt the best evidence is the direct
testimony of assertion of a human being offered.
21
On the other hand, Hearsay evidence by virtue of Section 37 of the Evidence Act 2011 refers to
the testimony of a witness who does not have personal knowledge of the facts which he tenders in
evidence and which he tenders for the purpose of proving the truth of the matters contained therein.
This evidence is manifestly inadmissible under Section 38 of the Evidence Act. In the case of
Subramaniam v Public Prosecutor, the court held that evidence of a statement made to a witness
by a person who is not himself called to testify is hearsay and inadmissible when the object of the
evidence is to establish the truth of what is contained in the statement. Thus, what makes a
statement hearsay is the object, purpose of tendering it in evidence. Where it is proposed to
establish by evidence, not the truth of the statement but the fact that it was made, it is not hearsay
and is legally admissible. The inadmissibility of hearsay evidence is subject to the exceptions
contained in the Evidence Act.
Thus, while direct evidence flows from the personal knowledge of a witness, hearsay evidence is
based on the testimony of a third party who is not called to testify. While direct evidence is
admissible, hearsay evidence is inadmissible subject to the exceptions contained in the Evidence
Act.
6a
Section 258 (1) (b) of the Evidence Act 2011 defines facts in issue to include any fact from which
either by itself or in connection with other facts the existence, non – existence or extent of right
any right, liability or disability asserted or denied in any suit or proceedings necessarily follows.
Similarly, Halsbury Laws of England defines facts in issue as those facts which are necessary to
prove or disprove, to establish or refute a case or the claim.
Generally, facts are said to be in issue when they are being disputed between the parties as will be
shown in their pleadings. Thus, in the case of Ukaegbu v Ugoji, it was held that the main function
of pleadings is to enable parties ascertain as much as possible the various matters actually in
dispute and in which there is disagreement.
On the other hand, facts relevant to facts in issue refers to facts which are not directly in issue but
are so connected, that for a claimant to have any success in making the facts in issue probable,
then he must establish them. The Evidence Act 2011 outlines circumstances when facts will be
relevant to the facts in issue and they are:
1.
2.
3.
4.
5.
6.
7.
8.
Under Section 4, facts forming part of the same transaction.
Under Section 5, facts which are the occasion, cause or effect of facts in issue.
Under Section 6, facts showing motive, preparation and previous or subsequent conduct.
Under Section 7, facts necessary to explain or introduce relevant facts.
Under Section 8, things said or done by conspirators in reference to a common intention.
Under Section 9, when facts not otherwise relevant become relevant.
Under Section 10, facts which will enable the courts to determine damages are relevant.
Under Section 11, facts showing existence of state of mind, body or bodily feeling.
22
9. Under Section 12, facts bearing on question as to whether an act was accidental or
intentional.
10. Under Section 13, facts showing the existence of course of business.
11. Under Section 19, facts showing how a matter alleged to be custom was understood and
acted upon.
In both civil and criminal proceedings, the admissibility of every fact which is relevant to the fact
in issue depends on the relevance. Thus, where a piece of fact is not relevant to the facts in issue
and it is admitted, its admissibility goes to no issue.
6b
Section 28 of the Evidence Act 2011 defines a confession as an admission made at any time by a
person charged with a crime, stating or suggesting the inference that he committed that crime.
Similarly, in the case of Yakubu v State, the court stated that a confessional statement in law, is
one in which the person alleged to have made the statements admits unequivocally in the statement
that he committed the offence he is charged with.
Flowing from the above, a confessional statement relates to criminal proceedings and it can be
made at any time in so far as it is voluntary. In the case of Lambert v Nigerian Navy, it was held
that a confessional statement must be direct and not equivocal. Similarly, the court has also held
in the case of R v Pepple, that a confessional statement cannot be made in proxy. It must flow from
the defendant himself because criminal liability is personal.
RETRACTION OF A CONFESSIONAL STATEMENT
On the issue of retraction, a confessional statement is said to be retracted when the defendant seeks
to or withdraws his earlier confession. On the authority of Tegwornor v State, the retraction of a
confessional statement goes to no issue. It only affects the probative value which the court will
attach. Nevertheless, in order to reduce the legal consequences of retraction of a confession by a
defendant, the prosecution can seek a corroboration of the confession of the defendant.
Corroboration is an independent testimony of a witness which supports, lends credence or render
more probable, an earlier testimony. Thus, where the prosecution is able to seek corroboration of
the confession of the defendant, the retraction of the defendant’s confession will be of no effect
and the court can rely on it for conviction.
CIRCUMSTANCES WHEN COURT WILL INVALIDATE A CONFESSIONAL
STATEMENT
The courts will invalidate a confessional statement under the following circumstances as
contained in Section 29 (2) of the Evidence Act 2011:
a. Where it was obtained by oppression.
b. Where it was obtained by torture.
23
c. Where it was obtained by inhuman or degrading treatment.
d. Where it was obtained by the use of threat of violence.
7a
Hearsay evidence by virtue of Section 37 of the Evidence Act 2011 refers to the testimony of a
witness who does not have personal knowledge of the facts which he tenders in evidence and which
he tenders for the purpose of proving the truth of the matters contained therein. This evidence is
manifestly inadmissible under Section 38 of the Evidence Act.
The position of the law as established in the case of FRN v Usman is that where a statement is
obtained with the aid of an interpreter, the interpreter must be called to testify in court and explain
the questions he interpreted and the answers given thereto. It must also be shown that the defendant
understood the questions put to him clearly both in court and at the point of extracting the
confessional statement in a language that he clearly understands.
Accordingly, where the prosecution seeks to tender the confession obtained through the aid of an
interpreter for the purpose of establishing the truth of what is stated in it, both the interpreter and
the person who recorded the confession must give evidence in court. The court in the case of
Nwaeze v State held that such a statement would be hearsay and legally inadmissible when the
interpreter and the person who recorded the statement where not called to court to testify. Thus,
where the purpose of tendering a statement is to establish the truth of its contents and the statement
was obtained with the help of an interpreter, both the interpreter and the person who recorded the
statement must give evidence in court.
7b
a. Inconsistency Rule
In the case of R v Ukong, it was held that where an extra – judicial statement of a witness in a trial
is inconsistent with the one given at the trial, the statement of such witness should be treated as
unreliable as the court cannot choose which to admit or reject. This is the inconsistency rule.
Explaining the rule more clearly, the court in Afolayan v State stated that if a witness had made a
previous written statement to the Police which is now inconsistent with his evidence before the
court, and no particular explanation was offered for the inconsistency, the duty of the court is to
reject both the statement to the Police and the evidence of the witness before the court to the extent
of the inconsistency.
However, in the case of Ikemson v State, it was established that where the statement in question
contended to be inconsistent is a confessional statement of an accused person, the law is that the
inconsistency rule does not apply. In other words, the inconsistency rule does not apply where it
is the confessional statement of the accused that is in issue.
24
b. Proof of voluntariness of a confessional statement
Where in pursuance of Section 29 (3) of the Evidence Act 2011 or by objection of the defence,
the voluntariness of a confessional statement comes into issue, the onus of proving that the
confessional statement was voluntarily made is on the prosecution. This was the position of the
court in the case Gbadomosi v The State. The court held in that case that the onus of proof is on
the prosecution who asserted that a confessional statement made by accused is voluntary to prove
that it was actually voluntary.
The means through which the voluntariness of a confessional statement is determined is by Trial
within Trial. A trial within trial is a mini trial different from the substantive trial and the only issue
for determination in a trial within trial is the voluntariness of a confessional statement. In the case
of Tegwornor v State, the court held that the purpose of a trial within trial is not to ascertain issues
of signature of the defendant, or that he never made the statement or that what he said was not
correctly recorded. The main aim of a trial within trial is solely to determine the voluntariness of
a confessional statement.
Failure to hold a trial within trial is an irregularity that goes to the root of the admissibility of the
confessional statement, but it does not affect the entire proceedings.
c. Formal and Informal Admissions
Generally, Section 20 of the Evidence Act 2011, defines admission as a statement, oral or
documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and
which is made by any of the persons, and in the circumstances, mentioned in the Act.
A formal admission is one that is made in a pleading in reference to a pending suit or anticipated.
On the other hand, an informal admission is made in the normal course of business. Informal
admission is any statement, oral or written, expressed or implied which is made by a party to a
civil proceeding and that statement made by the party is adverse, to his or her interests. In the case
of Ogunnaike v Odeyemi, it was held that to qualify as an admission, the statement must be
adverse, to the interest of the person who makes such admission.
The following are circumstances when statements will amount to admissions:
1. Statement made by privies under Section 21 of the Evidence Act.
2. Admissions by persons whose positions must be proved under Section 22 of the Evidence
Act.
3. Admissions by persons expressly referred to by a party to the suit under Section 23 of the
Evidence Act.
By Section 123 of the Evidence Act 2011, admitted facts need not be proved. However, as
provided in Section 27 of the Evidence Act 2011, admissions are not conclusive proofs of matters
25
admitted but they may operate as estoppel under Section 169 of the Evidence Act 2011. Thus, a
court may still require the proof of facts even though admitted.
2019/2020 LAW OF QUESTIONS
1. Mr. Ikenga Akabuogu, a trailer and long truck driver was facing trial at the High Court
of Justice, Rivers State for attempted manslaughter, on the life of Warisenibo. The
complainant claims that the trailer and long truck driver disregarded the traffic stop red
light at Azikiwe road, by UTC junction to hit him as he was crossing via the zebra lines.
To prove that the driver ignored the traffic light, Warisenibo gave evidence before the
Judge in open Court that immediately after the accident, a man walked up to him and
said, ‘Thank God, you did not die; that light was red when the driver hit you’.
1(i)
What kind of evidence is Warisenibo trying to rely on?
1(ii)
Explain why it is desirable for the system of evidence law to reject Warisenibos
testimony about the statement the man made to him after the accident.
1(b)
The terms re gestae and dying declaration have similarities and dissimilarities.
Discuss.
2a.
Mr. Tuamene Peters, is a Pharmacist trading tinder the name and style of Flourish
Pharma Center. He instituted Suit No: PHC/I2CS/2019 in the Port Harcourt Judicial
Division of the High Court of Rivers State against Mrs. Lebia Tete for publishing a
libelous article about him in the Lifestyle Magazine to the effect that he uses his
business outfit to distribute fake drugs in Nigeria. In the said suit, Mr. Tuamene
Peters claimed inter alia the sum of N100m as general damages for injury done to
his reputation arid business fortune. Mrs. Lebia Tete in her Statement of Defence
without justifying the publication, pleaded a report of the Pharmaceutical Society of
Nigeria which indicted Mr. Tuamene Peters in 2005 for defrauding the body of large
sums of money and also obtaining fake clearance certificates to mitigate the claim
for damages. Also, Mrs. Lebia Tete’s Statement on Oath containing her evidence,
she narrated instances where Mr. Tuamene Peters also defrauded several members
of the body. During trial, Learned Counsel to Mrs. Lebia Tete sought to tender the
report and this prompted an objection by Learned Counsel to Mr. Tuamene Peters
to the admissibility of the report on the ground that the contents are injurious and
mount to evidence of character. It was also urged upon the Court to strike out the
above portion of Mrs. Lebia Tete’s evidence which delved into the past as same is
inadmissible.
26
As Counsel to Mrs. Lebia Tete, prepare your response to the objection and the
application to strike out (he concerned portion of Mrs. Lebia ‘Fete’s evidence
relying on appropriate legal authorities to prop up your answer.
2b.
You have been invited by the law society of Nigeria to speak on the topic. “The
Place and Potency of Evidence of past behavioural records of a Nigeria Citizen in a
Legal Proceeding “. Prepare your presentation and highlight any area of reform.
3a
With the aid of’ statutory provisions and decided cases, discuss elaborately the
circumstances under which Confessional Statement will become Hearsay.
3b
What are the sources of Nigerian Law of’ Evidence? Discuss its scope and
classification.
4a
With the aid of statutory provisions and decided cases, discuss fully how facts.
which needs not to be proved is different from presumed facts.
4b
With reference to the Nigerian Evidence Act 2011 and decided cases, examine and
illustrate the two or three types of Admission. Under what circumstances can
statements amount to admission under the Act as confirmed by the Courts? Why is
oral evidence not admissible to prove the contents of a document and what are the
exception(s) (if any)?
5a
A confession by the defendant means that he has admitted to the commission of the
crime. Why is the proof of the confession still required by the Evidence Act?
Discuss the fundamental principles or reasons, citing decided cases including all
relevant sections of the Evidence Act 2011.
5b
With the help of statutory provisions and decided cases, examine how evidence in
other proceedings will amount to Confession or Admission. Is it possible for them
to be retracted? Anchor your analysis on the decision of the Court in Peter Iliya
Azabada v The State (2014) LPELR 23017 SC (as per Onnoghen JSC).
6a.
Generally, unsigned documents are not admissible in Court. What are the
exceptions? Provide statutory and case law authorities to back your submissions.
6b
With the aid of statutory provisions and decided cases, examine and distinguish all
the improvements or reformation of the 2011 Evidence Act from the old Evidence
Act Cap E14 LFN 2004. Also, discuss broadly the provision4 of Sections 37-38 of
the Evidence Act 2011.
7a
With reference to decided cases and statutory provisions, especially the Evidence
Act 2011, distinguish between Facts in issue and Facts Relevant to the- Facts in
issue.
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7b
Who can give an expert opinion? What are the conditions for the admissibility of
pert/Opinion Evidence? Also, discuss Opinion Evidence that is relevant as stated in the
Evidence Act.
ANSWERS
1 (i)
Under the circumstances, the kind of evidence Warisenibo is trying to rely on is hearsay
evidence which is defined under Section 37 of the Evidence Act as the testimony of a witness
who does not have personal knowledge of the facts which he tenders in evidence and which he
tenders for the purpose of proving the truth of the matters contained therein. This evidence is
manifestly inadmissible under Section 38 of the Evidence Act.
In the case of Subramaniam v Public Prosecutor, the court held that evidence of a statement made
to a witness by a person who is not himself called to testify is hearsay and inadmissible when the
object of the evidence is to establish the truth of what is contained in the statement. Thus, what
makes a statement hearsay is the object, purpose of tendering it in evidence. Where it is proposed
to establish by evidence, not the truth of the statement but the fact that it was made, it is not hearsay
and is legally admissible.
1 (ii)
Hearsay evidence is expressly excluded under Section 38 of the Evidence Act and so
Warisenibo is prevented from tendering the statement of the man made to him after the
incident took place. The rationale or desirability for the exclusion of Warisenibo’s kind of
evidence is based on the following:
a. The statement may have been doctored or altered.
b. Unreliability of the original maker of the statement.
c. Lack of opportunity of observing the demeanor of the maker of the statement which is
sought to be tendered.
d. The statement may have undergone the furnace of misrepresentation which renders it
different from what the original maker has said.
e. The difficulty or impossibility of ascertaining the truth or veracity of the statement.
The following therefore forms the premise for the exclusion of the admissibility of hearsay
evidence which Warisenibo is trying to rely on and tender.
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1 (iii)
Res gestae is a common law principle which enables facts to be admissible when they form
part of a transaction. Although res gestae is not expressly mentioned under the Act, Section
4 of the Evidence Act 2011 seems to have captured the common law principle. That Section
(Section 4) provides that facts which though not in issue but are so connected with the fact
in issue as to form part of the same transaction are relevant.
The common law principle of res gestae makes relevant, statements or acts which are so
closely connected with the facts in issue in terms of time, place or circumstances of the
events. In the case of Salawu v State, the Court held that res gestae and the provisions of
Section 4 of the Evidence Act are arguably similar. Thus, where facts are so connected
with the facts in issue so as to form part of the same transaction, they are admissible as res
gesta.
In the case of Ishola v State, the fact in issue was whether the appellant had killed the
deceased at night. Evidence showed that he (appellant) has been having problems with the
people of the community, especially the deceased and there has been cases of prior assault.
It was held that these acts are inextricably mixed up with the history of the criminal act
itself. Similarly, in the case of Isibor v State, A’s car was snatched. The same car was used
to rob the following day. The court held that A could not have been involved since his car
was used had been snatched from him.
On the other hand, a dying declaration under Section 40 of the Evidence Act refers to a
statement of a deceased relating to his cause of death and by whom, made in extremity when the
deceased was at the point of death.
The rationale for the admissibility of the dying declaration of a deceased person was succinctly
captured in the English case of R v Woodcock, where the court explained that the general principle
on which this species (referring to dying declarations) of evidence is admitted is that they are
declarations made in extremity when the party is at the point of death, and when every hope of this
world is gone; when every motive of falsehood is silenced, and the mind is induced by the most
powerful consideration to speak the truth; a situation so solemn and so awful is considered by law
as creating an obligation equal to that which is imposed by positive oath administered in a court
of justice.
The similarities between res gestae and a dying declaration are:
a. Both of them are exceptions to the hearsay rule.
b. A statement that does not qualify as a dying declaration may be admissible as res gestae.
29
The similarities between res gestae and a dying declaration are:
a. For res gestae, the transactions must have been contemporaneous for it to be
admissible. However, for dying declarations, the time of the declaration and death
of the deceased need not be contemporaneous.
b. Res gestae is of wider application in that it applies to every suit where a transaction
sheds light on the fact in issue. However, dying declaration will only apply when
the cause of death of a person is a fact in issue.
2 (a)
The hypothetical question bothers on character evidence and its admissibility subject to the
provisions of the Evidence Act 2011 particularly in Civil proceedings. Under the circumstances,
the legal issues for determination are:
c. Whether having regards to the provisions of Section 78 of the Evidence Act, the report
sought to be tendered by the defendant, Mrs. Lebia Tete is admissible on the grounds that
it touches on the character of the claimant, Mr. Tuamene Peters?
d. Whether the defendant, Mrs. Lebia Tete can find succor under the provisions of Section 79
and 80 of the Evidence Act so as to admit evidence of the bad character of the claimant,
Mr. Tuamene Peters for the purpose of showing that he is not worth the damages he claims?
Section 77 of the Evidence Act 2011 defines character to mean reputation as distinguished from
disposition. Thus, Character means reputation and is distinguished from disposition (the tendency
to behave in a particular way) or status (one’s social standing in the society either by reason of
economic standing, positions occupied, qualifications etc See Haruna v COP). What the Law is
interested in is reputation and not status or disposition.
In the English case of Plato Films Ltd v Speidel, Lord Denning defined character to mean the
esteem in which a person is held by others who know him and are in a position to judge his worth.
Following this decision and the express provision of Section 77 of the Evidence Act 2011, the
House of Lords’ decision in Selvey v DPP where reputation was equated with disposition has no
place in our legal system on the construction of what amounts to character.
As a matter of general rule in civil cases, Section 78 of the Evidence Act 2011, expressly provides
that character evidence is inadmissible in civil cases except in so far as such character appears
from facts otherwise relevant. According to Jerry Amadi in his book, Contemporary Law of
Evidence in Nigeria Volume 1 (page 706), the rationale for the inadmissibility of character
evidence lies in the fact that it is irrelevant, it detracts from the main issue in controversy, and it is
likely to prejudice the mind of the fact-finder, in the case of Nigeria, the trial court.
30
The above general rule is however subject to the following exceptions:
c. Where the character of a party may affect the quantum of damages that may be awarded
by the court.
d. Where in an action for libel and slander, the defendant relies on the defence of justification
to show that the claimant is not worth what he is claiming as damages.
a. Where the character of a party may affect the quantum of damages that may be
awarded by the court: Section 79 of the Evidence Act 2011 provides that in civil cases,
the fact that the character of any person is such as to affect the amount of damages which
he ought to receive may be given in evidence. Similarly, Section 10 of the Evidence Act
2011 also provides that in proceedings where damages are claimed, any fact which will
enable the court to determine the amount of damages which ought to be awarded is relevant.
Explaining this principle, the English court in the case of Scott v Sampson held that general
evidence seems in principle to be admissible, as immediately as necessarily connected with the
question of damages… To enable the jury to estimate the probable quantum of injury sustained, a
knowledge of the party’s previous character is not only material, but seems to be absolutely
essential.
It must be noted that the purpose of Section 79 of the Act is that it allows evidence of character to
be admissible not for the purpose of defeating any claim made on the other side, but to mitigate
the costs or damages which a successful party will ordinarily be entitled to. In the case of
Butterworth v Butterworth, the petition of the wife centered on the bad character of the
respondent. The respondent on his part led evidence to show that the petitioner had been of bad
character. It was held that the evidence of the petitioner’s bad character was admissible in
mitigating damages against him. Similarly, in the case of Din v African Newspapers Ltd, the
appellant’s action for defamation failed because the respondent was able to establish that what was
published about the plaintiff was true and the appellant admitted to his own bad character under
cross-examination.
b. Where in an action for libel and slander, the defendant relies on the defence of
justification to show that the claimant is not worth what he is claiming as damages:
Section 80 of the Evidence Act 2011 provides for circumstances when the defendant does
not assert the truth of the statement complained of but is seeking to give evidence of
character with a view to mitigating damages. The uniqueness of Section 80 of the Evidence
Act includes the following:
1. The Section applies exclusively to actions for defamation, that is actions for libel or
slander.
2. The Section applies where the defendant does not assert the truth of the injurious statement.
31
3. The Section applies where the defendant intends to produce evidence that will mitigate the
damages awardable to the claimant, which is possible on the ground of the circumstances
leading to the publication, or on the grounds of the claimant’s own character.
For a defendant to rely on the covering of Section 80 of the Act, he/she must:
c. Seek leave of the court.
d. Must furnish particulars to the plaintiff of the matters of which he intends to lead evidence
on at least seven (7) days before the date of trial.
In the instant case, evidence of the claimant’s bad character is admissible under Section 79
of the Evidence Act 2011, since the determination of his claim #100M is an issue before
the court. The defendant, Mrs. Lebia Tete is also entitled under Section 79 of the Evidence
Act 2011, as she does not justify the publication but seeks to show that the claimant, Mr.
Tuamene Peters is not worth the reputation for which he claims #100M.
In conclusion, the objection and application of the claimant, Mr. Tuamene Peters to strike
out the concerned portions of Mrs. Lebia Tete’s evidence is unfounded in law and cannot
stand. The defendant, Mrs. Lebia Tetem is entitled to lead evidence of the claimant’s
character under the circumstances.
2 (b)
The past behavioural records of a Nigerian citizen in legal proceedings (both civil and
criminal) is generally not admissible. The reason is that such evidence is to be prejudicial
to the party against whom such evidence is sought to be admitted on the one hand, and the
Court on the other hand which has a duty to be fair and impartial. This resonates with the
demands of natural justice particularly, nemo judex in causa sua and audi alteram partem.
Thus, Section 78 of the Evidence Act provides that in civil cases, evidence of the fact that
the character of any person concerned is such as to render probable or improbable any
conduct imputed to him is inadmissible. Similarly, Section 82 (1) of the Act also provides
that subject to the exceptions provided under the Act, evidence of the fact that a defendant
is of bad character is inadmissible in criminal proceedings.
The above provisions clearly show the attitude of the law with respect to the place and
potency of Evidence of past behavioural records of a Nigerian citizen in a Legal
Proceeding. This position is however subject to certain exceptions provided under the law which
will be looked at as it concerns criminal and civil proceedings.
32
CIVIL PROCEEDINGS
In civil proceedings, Evidence of past behavioural records of a person will be admissible
under the following circumstances:
1. Under Section 79 of the Act, where the character of the person will affect the damages to
be awarded.
2. Under Section 80 of the Act, in an action for libel and slander, where the defendant does
not assert or justify the statement complained of.
CRIMINAL PROCEEDINGS
In criminal proceedings, Evidence of past behavioural records of a person will be admissible
under the following circumstances:
1. Under Section 82 (2) (a) of the Act, where the bad character of the defendant is a fact in
issue.
2. Under Section 82 (2) (b) of the Act, where the defendant gives evidence of his good
character.
3. Under Section 180 (g) of the Act, where a defendant is charged jointly with others, during
cross-examination, he may be asked questions bothering on his character.
4. Under Section 12 of the Act, where there is a question whether an act was accidental or
intentional, or done with a particular knowledge or intention or to rebut any defence that
may otherwise be open to the defendant, the fact that such act formed part of a series of
similar occurrences, in each of which the person doing the act was concerned, is relevant.
Flowing from the above, given the prejudicial effects of Evidence of past behavioural records
of a person, it is generally not admissible. However, under the exceptions provided above,
the Evidence of past behavioural records of a person will be potent to legal proceedings.
3 (a)
This question is a repetition of QUESTION 7 (a) of 2020/2021. Kindly revisit it for the
answers provided.
3 (b)
This question is a repetition of QUESTION 5 (a) of 2020/2021. Kindly revisit it for the
answers provided. The only part of the question that requires attention is the scope of
Evidence which as not part of QUESTION 5 (a) of 2020/2021.
Evidence is listed in the Exclusive Legislative list as Item 23 of Part 1 to the Second
Schedule to the 1999 Constitution of Nigeria as a matter upon which only the National
33
Assembly can legislate on. This position was confirmed in the cases of Fawehinmi v
Abacha & Benjamin v Kalio.
Accordingly, Section 256 (1) of the Evidence Act provides that this Act shall apply to all
judicial proceeding in or before any court established in the Federal Republic of Nigeria.
Thus, the scope of evidence covers all courts in Nigeria. However, the same section
(Section 256 (1) of the Evidence Act) excludes the following institutions from the
applicability of the Evidence Act and they are:
a. Proceedings before an arbitrator,
b. A field general court martial, or
c. Judicial proceedings before Customary courts.
However, when the issue of fair hearing and the determination of guilt of a person is before
the court, the court will be bound by the provisions of Sections 132 – 136 of the Evidence
Act 2011. Thus, in the case of Falodun v Ogunse, the Court of Appeal per Nweze JCA (as
he then was) stated that the provisions of the constitution (Section 36) relating to fair
hearing are so ubiquitous, so that even customary courts will be bound by them
Thus, the Evidence Act applies to all courts in Nigeria with the exceptions of proceedings
before an arbitrator, a field general court martial and customary courts. However, when the
issue of fair hearing and criminal liability of a person comes up, the all courts (arbitrator,
a field general court martial and customary courts) are bound by the Evidence Act 2011.
4 (a)
Under the Evidence Act 2011, facts which need not be proved are:
1. Admitted facts: These are facts which either of the parties have by their conduct
accepted so that there is no need for proof. This is otherwise known as admissions
under Section 20 of the Evidence Act. For instance, in the case of Akinlagun v
Oshoboja, the respondents sued for a declaration of title. The appellants admitted
to being customary tenants of the respondent. It was held that the respondent need
no further proof because an admitted fact need no further proof. This is expressly
contained in Section 123 of the Evidence Act 2011.
2. Facts judicially noticed: Facts which the court must take judicial notice of
including customs are contained in Section 122 of the Evidence Act and they include
all laws, enactments, subsidiary legislations made and having the force of law in
any part of Nigeria, laws passed by the National Assembly, State Houses of
Assembly and Local Government Councils, the course of proceedings of the
34
National Assembly and State Houses of Assembly, assumption of office of the
President, a State Governor, Chairman of a Local Government Council etc. All these
facts by the provisions of Section 122 of the Evidence Act needs no further proof.
In the case of Bunge & Ors v Government of Rivers State, the Supreme Court took
judicial notice of the fact that in Rivers State, there is a proliferation of communities.
3. Facts of common knowledge: Section 124 of the Evidence Act provides that facts
which is not reasonably open to question and which is common knowledge in a
particular district where proceeding is held and is capable of being verified by
reference to a document the veracity of which cannot be questioned etc, the court
may take notice of such fact. In that case, proof will not be required.
On the other hand, facts which are presumed are facts which are drawn from facts that have
been established. Section 167 of the Evidence Act allows the court to make presumptions
having regard to the common course of natural events, human conduct etc. A presumed
fact may be of law or of fact and may be rebuttable (in which case it may be displaced by
a superior evidence) or irributtable (in which case it is conclusive and cannot be
contradicted by superior evidence).
Flowing from the above, the difference between facts which needs no proof and presumed
facts is that the latter (facts which needs no proof) is conclusive and obviates the burden of
proof. However, the former (presumed facts) may still require proof.
4 (b)
The two types of admissions are:
1. Formal admission
2. Informal admission
Generally, Section 20 of the Evidence Act 2011, defines admission as a statement, oral or
documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and
which is made by any of the persons, and in the circumstances, mentioned in the Act.
A formal admission is one that is made in a pleading in reference to a pending suit or anticipated.
On the other hand, an informal admission is made in the normal course of business. Informal
admission is any statement, oral or written, expressed or implied which is made by a party to a
civil proceeding and that statement made by the party is adverse, to his or her interests. In the case
of Ogunnaike v Odeyemi, it was held that to qualify as an admission, the statement must be
adverse, to the interest of the person who makes such admission.
The following are circumstances when statements will amount to admissions:
35
1. Statement made by privies under Section 21 of the Evidence Act as was held in the case of
IGA & Ors v Amachree.
2. Admissions by persons whose positions must be proved under Section 22 of the Evidence
Act.
3. Admissions by persons expressly referred to by a party to the suit under Section 23 of the
Evidence Act and as was confirmed in the case of R v Mallory.
By Section 123 of the Evidence Act 2011, admitted facts need not be proved. However, as
provided in Section 27 of the Evidence Act 2011, admissions are not conclusive proofs of matters
admitted but they may operate as estoppel under Section 169 of the Evidence Act 2011. Thus, a
court may still require the proof of facts even though admitted.
Oral evidence is not admissible to prove the contents of a document as provided under Section 128
of the Evidence Act, 2011. The reason is that documentary evidence speaks for itself. The
exceptions are:
a.
b.
c.
d.
e.
Fraud
Misrepresentation
Wrong date
Mistake of fact or law
Duress or undue influence.
5 (a)
Section 28 of the Evidence Act 2011 defines a confession as an admission made at any time by a
person charged with a crime, stating or suggesting the inference that he committed that crime.
Similarly, in the case of Yakubu v State, the court stated that a confessional statement in law, is
one in which the person alleged to have made the statements admits unequivocally in the statement
that he committed the offence he is charged with.
The proof of a confession is still required by the Evidence Act for the following reasons:
a. Under Section 27 of the Evidence Act, an admission (which includes confession) is not a
conclusive proof of the matters admitted. The court reserves the discretion to require proof
even in the presence of an admission.
b. In case of a retraction of a confessional statement by the defendant, proof will be needed
to show that he committed the crime to which he earlier confessed.
c. Where the voluntariness of a confession is in question under Section 29 (2) of the Evidence
Act, in which case a trial within trial is conducted.
The fundamental principles on confessional statements is that it must be free-standing, that is, it is
must be voluntary, direct, relevant and it must have been made in reference to a criminal
36
proceeding. In the cases of R v Pepple & R v Iyang, it was held that a confessional statement must
be made by the defendant himself and not by proxy.
5 (b)
Section 32 of the Evidence Act provides that evidence amounting to confession may be
used as such against the person who gives it, provided the proceedings are similar. Thus,
confessions made in one proceedings will amount to a valid confession in another
proceeding.
A confessional statement can be retracted by the defendant. A confessional statement is said
to be retracted when the defendant seeks to or withdraws his earlier confession or admission of
guilt. On the authority of Tegwornor v State, the retraction of a confessional statement goes to no
issue. It only affects the probative value which the court will attach. Nevertheless, in order to
reduce the legal consequences of retraction of a confession by a defendant, the prosecution can
seek a corroboration of the confession of the defendant.
Corroboration is an independent testimony of a witness which supports, lends credence or render
more probable, an earlier testimony. Thus, where the prosecution is able to seek corroboration of
the confession of the defendant, the retraction of the defendant’s confession will be of no effect
and the court can rely on it for conviction.
In the case of Peter Iliya Azabada v The State, the court held that the law is trite that where a
defendant later retracts his confession at the trial, the courts have evolved a practice of that the
trial Court must look for some evidence no matter how slight, outside the confession which would
make the confession probable. The essence of this rule of practice is to discern which of the two
versions of the events is likely to be correct for the Trial Court to rely on with regard to the
commission of the said crime.
6 (a)
In the case of APGA v Al-Makura, the Supreme Court held that documents to be tendered in a
court must be signed. The court held further that an unsigned document is lacking in value, it is
worthless and has no evidential value. This is contained in Section 83 (4) of the Evidence Act 2011
which provides that a statement in a document shall not be deemed to have been made by a person
unless the document or the material part of it was written, made or produced by him with his own
hand, or was signed or initialed by him or otherwise recognized by him in writing as one for the
accuracy of which he is responsible.
Thus, an unsigned document is not admissible in court. The rationale is that a document without a
signature is akin to a child without parents and whose ancestry cannot be traced to anyone. Such a
document is not worthy of the sight of the court.
37
However, the exception to this principle as was stated in the case of Ashaka Cement v
Mubashishurum Investment Ltd, is that an unsigned document will be admissible when the maker
is present in court to give oral evidence as to the contents of the document and authorship of the
document.
6 (b)
An examination of the Evidence Act, 2011 vis-a-vis the Evidence Act Cap E14 shows that it is a
considerable improvement on the repealed Evidence Act, Cap E14 because it contains a number
of innovative provisions. These innovative provisions in the Evidence Act, 2011 fall into two broad
categories. The first category covers entirely new provisions which were not contained in the
repealed Evidence Act at all while the second category deals with modification, expansion or
adaptation of provisions contained in the repealed Act. The innovative provisions falling under
both categories may be briefly highlighted as follows:
1. HEARSAY EVIDENCE: Unlike the Evidence Act 2004, Cap E14 which did not contain
any specific or explicit provision on the inadmissibility of hearsay evidence in judicial
proceedings or even a reference to the term “hearsay evidence”, the Evidence Act,
2011contains two substantive provisions dealing specifically with hearsay evidence.
Hearsay evidence is defined under Section 37 of the Evidence Act, 2011 as meaning any
statement “oral or written made otherwise than by a witness in a proceeding; or contained
or recorded in a book, document or any record whatever, proof of which is not admissible
under any provision of this Act, which is tendered in evidence for the purpose of proving
the truth of the matter stated in it.” The above definition which is a reproduction of Article
14 in Sir James F. Stephen’s Digest of the Law of Evidence has been widely adopted in
law case on hearsay evidence. It is also interesting to note that unlike the position under
the repealed Evidence Act wherein the exclusion of hearsay evidence in judicial proceeding
was not explicitly stated, but rather inferred from the combined provisions of Sections 77
and 91 of that Act,3 Section 38 of the Evidence Act, 2011 explicitly codifies the general
rule of exclusion of hearsay evidence in all judicial proceedings to which the Act applies.
Thus, by virtue of Section 38 of the Evidence Act, “hearsay evidence is not admissible
except as provided in this Part or by or under any other provision of this or any other Act.”
It is clear from a literal interpretation of this provision that the admissibility of hearsay
evidence is permissible either under the Act itself or by virtue of the provisions of any other
Act of the National Assembly. Thus, the statement of exclusion of hearsay evidence under
s. 38 of the Evidence Act, 2011 is subject to the exceptions provided in the Evidence Act
or in any other Act of the National Assembly.
2. ADMISSIBILITY OF ILLEGALLY OR IMPROPERLY OBTAINED EVIDENCE:
Prior to the enactment of the Evidence Act, 2011, there was no explicit provision in the
Evidence Act, Cap E14 that dealt with the admissibility of improperly or illegally procured
evidence in judicial proceedings. Our courts had relied on principles of the English
common law in admitting such evidence subject to the discretionary power of the trial
38
Judge, particularly in criminal proceedings to exclude such evidence where its
admissibility would operate unfairly against the accused in all the circumstances of the
case. This gap in our code of evidence law has now been filled by the insertion of sections
14 and 15 in the Evidence Act, 2011. Section 14 of the Evidence Act, 2011 provides that:
s. 14- Evidence obtained- (a) improperly or in contravention of a law; or (b) in consequence
of an impropriety or of a contravention of a law, shall be admissible unless the court is of
the opinion that the desirability of admitting the evidence is out-weighed by the
undesirability of admitting evidence that has been obtained in the manner in which the
evidence was obtained. Section 15 (a)-(g) of the Evidence Act, 2011 specifies the matters
that the court would take into consideration in forming its opinion that the admissibility of
evidence which has been improperly or illegally obtained may operate unfairly against the
adverse party and that such evidence should be excluded in the interest of justice. These
matters include the probative value of the evidence; the importance of the evidence in the
proceedings; the nature of the relevant offence, cause of action or defence and the nature
of the subject-matter of the proceeding; the gravity of the impropriety or contravention;
whether the impropriety or contravention was deliberate or reckless; whether other
proceeding (whether or not in a court) has been or is likely to be taken in relation to the
impropriety or contravention; and the difficulty, if any, of obtaining the evidence without
impropriety or contravention of law. Clearly, the intendment of s. 15 of the Evidence Act,
2011 is to provide a guide for the exercise of the court’s discretion to exclude improperly
or illegally obtained evidence in deserving cases without necessarily limiting that
discretion. The importance of the inclusion of these provisions in the Evidence Act, 2011
lies in the fact that the admissibility or inadmissibility of improperly obtained evidence is
now governed expressly by the Act thus rendering the law in Nigeria on this matter
predictably certain.
3. RESTRICTION ON THE USE OF EVIDENCE OF PREVIOUS CONVICTION TO
PROVE BAD CHARACTER OF AN ACCUSED: The Evidence Act, 2011 contains a
new provision in s.82 (5) which restricts the application of Section 82(4) of the Act. To be
sure, Section 70 (4) of the repealed Evidence Act, cap E14 (identical with Section 82(4) of
Evidence Act, 2011) provided that whenever evidence of bad character was admissible,
evidence of previous conviction was also admissible. However, the repealed Act was silent
on the kind of evidence of previous conviction that could be tendered to prove bad character
pursuant to s. 70(4) thereof. In other words, it was not clear from the repealed Evidence
Act whether the evidence of previous conviction rendered admissible under Section 70 (4)
should be related in substance to the offence charged in the latter proceeding wherein the
evidence was sought to be tendered. Put differently, the repealed Evidence Act was not
explicit on whether evidence of a previous conviction for rape, for instance, would be
admissible to prove the accused’s bad character in a latter charge of stealing since both
offences are not related. This lacuna in the repealed Evidence Act was worrisome because
at common law, whenever evidence of bad character is admissible; such evidence needs
39
not be confined to those bearing direct relevance to the offence charged in the latter
proceeding. In R v. Winfield, it was held that there is no such thing “as putting half a
prisoner’s character in issue and leaving out the other half.” However, the unrestricted use
of evidence of previous conviction to prove bad character of an accused in a subsequent
criminal proceeding involving an offence completely unrelated to the subject-matter of the
previous criminal conviction may not advance the cause of justice as it merely permits the
admissibility of evidence of a highly prejudicial quality by the courts. The uncertainty and
potential prejudice have now been put to rest by the Evidence Act, 2011 because Section
82(5) provides specifically that in cases where Section 82(4) of the Act applies, the court
“shall only admit evidence of the previous convictions which are related in substance to
the offence charged.” It is submitted that the effect of Section 82(5) of the Evidence Act,
2011 is to displace the common law principle which gives the prosecution the right to
tender evidence of previous conviction of an accused to establish his bad character in
subsequent judicial proceeding irrespective of whether the previous conviction is related
to the offence charged in the subsequent proceeding. Thus, under the Evidence Act, 2011,
evidence of an accused’s previous conviction for stealing would be inadmissible to prove
his bad character in a subsequent trial for rape under Section 82 (4) of the Evidence Act,
2011 as both offences are not related.
4. JUDICIAL NOTICE OF CUSTOM BASED ON A SINGLE PREVIOUS DECISION
OF A SUPERIOR COURT OF RECORD: It is now trite law that customary law is a
question of fact to be pleaded and proved by evidence by the party asserting its existence
unless it can be judicially noticed and the burden of proving the alleged custom lies on the
party alleging its existence. In other words, where a custom cannot be established as one
judicially noticed, it shall be proved as a fact. Thus, proof of a custom either by judicial
notice or by evidence was expressly provided for under the repealed Evidence and the same
position is maintained in the Evidence Act 2011. However, the point of divergence between
the repealed Evidence Act of 2004 and the Evidence Act, 2011 lies in the condition
precedent that must be satisfied before a court can take judicial notice of a custom that is
relevant to the proceeding before it. Section 14 (2) of the repealed Evidence Act, cap. E14
provided that: A custom may be judicially noticed by the court if it has been acted upon by
a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies
the court asked to apply it in assuming that the persons or class of persons concerned in
that area look upon the same as binding in relation to circumstances similar to those under
consideration. Thus, under the repealed Evidence Act, more than one previous decision of
a court of superior record on the applicability of a particular custom was required before
another court called upon to enforce a right based on that same custom could take judicial
notice of it without the necessity for proving same by evidence. In other words, the custom
in question must have frequently been the subject-matter of litigation and must have been
pronounced upon repeatedly by superior courts of record within the same area as to become
notorious and common knowledge. In Buraimo v. Gbamgboye, it was held that it was
40
unnecessary to bring evidence to prove particular customs which have been so frequently
before the courts as to be well established and notorious. However, the requirement of
frequent or repeated judicial pronouncement on a rule of customary law as the criteria for
judicial notice created confusion since it did not specify the number of judicial
pronouncements on an applicable rule of customary law necessary to justify judicial notice.
This may be illustrated by reference to three decided cases. In Larinde v. Afikpo, the court
declined to take judicial notice of a custom which had been acted upon only once by a
superior court of record. On the other hand, in Cole v. Akinyele, the court took judicial
notice of a custom which had been acted upon only once in the earlier case of Alake v.
Pratt. Finally, in Osinowo v. Fagbenro, the court took judicial notice of a custom which
had been acted upon thrice. The confusion arising from the above subjective application of
the requirement that the custom must have been so frequently before the courts as to be
well established and notorious underscored the need for amendment to facilitate judicial
notice of customs. The amendment is set out in Section 17 of the Evidence Act, 2011 which
provides that “A custom may be judicially noticed when it has been adjudicated upon once
by a superior court of record.” Thus, under the Evidence Act, 2011 a single decision by a
superior court of record is sufficient to justify judicial notice of that custom in another
judicial proceeding. Thus, it is sufficient for the purpose of taking judicial notice of a
custom that there exists a single decision delivered by a superior court of record on that
custom which is still subsisting and has not been set aside on appeal.
5. ADMISSIBILITY OF COMPUTER-GENERATED EVIDENCE: Perhaps, one of the
most far-reaching innovations introduced by the Evidence Act, 2011 is the inclusion of
several provisions dealing specifically with the admissibility of computer-generated
evidence. Although computer-generated evidence, particularly entries in bankers’ books
has been held admissible under the provisions of the repealed Evidence Act, the Evidence
Act, 2011 contains elaborate provisions dealing with the admissibility of computergenerated evidence. In this regard, Section 84 (1) of the Evidence Act, 2011 provides that:
In any proceeding a statement contained in a document produced by a computer shall be
admissible as evidence of any fact stated in it of which direct oral evidence would be
admissible, if it is shown that the conditions in subsection (2) of this section are satisfied
in relation to the statement and computer in question. It is clear from the above section
that the admissibility of computer-generated evidence or document downloaded from the
internet in any judicial proceeding is made subject to the fulfilment of the conditions
prescribed in sub-section (2) of s. 84 of the Evidence Act, 2011. In Kubor v. Dickson, it
was held by the Supreme Court that a party that seeks to tender in evidence a computergenerated document needs to do more than just tendering same from the bar. Evidence in
relation to the use of the computer must be called to establish the conditions specified in s.
84 (2) of the Evidence Act, 2011 and that failure to fulfil those conditions will render the
computer-generated evidence inadmissible. Therefore, the conditions set out in Section
84(2) must be satisfied by the party seeking to tender computer-generated evidence before
41
same can be admitted by the court. The conditions specified in Section 84(2) of the Act
which must be proved in evidence in order to render computer-generated evidence
admissible are- (a) that the document containing the statement was produced by the
computer during a period over which the computer was used regularly to store or process
information for the purposes of any activities regularly carried on over that period,
whether for profit or not, by anybody, whether corporate or not, or by any individual; (b)
that over that period there was regularly supplied to the computer in the ordinary course
of those activities information of the kind contained in the statement or of the kind from
which the information so contained is derived; (c) that throughout the material part of that
period the computer was operating properly or, if not, that in any respect in which it was
not operating properly or was out of operation during that part of that period was not such
as to affect the production of the document or the accuracy of its contents; and (d) that the
information contained in the statement reproduces or is derived from the information
supplied to the computer in the ordinary course of those activities.
6. EXPANSION OF THE DEFINITION OF “DOCUMENT”: Section 2(1) of the
repealed Evidence Act defined the term “document” to include books, maps, plans,
drawings, photographs and any matter expressed or described upon any substance by
means of letters, figures or marks or by more than one of these means, intended to be used
or which may be used for the purpose of recording that matter. Thus, the term “document”
was defined narrowly in terms of inscriptions made on paper thereby excluding materials
stored in disc, tape, video cassette, film, negative etc., from the categories of document.
Based on this restrictive provision, it was held in Udoro v. Governor Akwa Ibom State,
that a video cassette did not qualify as documentary evidence under the repealed Evidence
Act. The definition of “document” has now been extended under Section 258(1) of the
Evidence Act, 2011 to cover disc, tape, sound track or other device in which sounds or
other data (not being visual images) are embodied so as to be capable of being reproduced
from it; any film, negative, tape or other device in which one or more visual images are
embodied so as to be capable of being reproduced from it; and device by means of which
information, is recorded, stored or retrievable including computer output.
7. RECOGNITION OF MARRIAGES CELEBRATED UNDER CUSTOMARY AND
ISLAMIC LAWS: Another major innovation introduced in the Evidence Act, 2011 is the
formal recognition accorded marriages celebrated under customary and Islamic laws at
least for the purposes of enjoying testimonial privileges. It will be recalled that under
Section 2 (1) of the repealed Evidence Act, cap E14, the terms “wife” and “husband” were
defined to mean respectively “the wife and husband of a monogamous marriage.” The
practical implication of the above definition was that spouses of polygamous marriages
celebrated in accordance with customary and Islamic laws were denied the testimonial
privileges guaranteed under Sections 161(2), (3) (4), 162, 163 and 164 of the Act. This
discriminatory policy against spouses of customary and Islamic marriages which was a
painful relic of colonialism had been roundly condemned by learned writers. According to
42
Hon. Justice Niki Tobi: The point which must be made and quickly too for that matter is
that the provisions of the section apply only to husband and wife of a monogamous
marriage within the meaning of Section 2 of the Evidence Act. And this is where our
problem emanates. It is rather sad that the immunities contained in the section are
restricted only to monogamous marriages, excluding polygamous marriages. In a society
which is mostly polygamous, both in its cultural and sociological content, the restriction is
out of tone with the practice and realities of the people. . . It is obvious that the
discriminatory piece of legislation is a relic of colonialism which should no longer find a
place in modern Nigeria. Certainly, the sociological and cultural content of the society will
not lend support to that parochial and sophisticated definition of wife and husband in the
Evidence Act. It is too English for our liking. It is our submission that the definition of wife
and husband under section 2 of the Act should be expunged. The implication of this is that
the provision will then automatically apply to both types of marriages. That is how it should
be. The above criticism has now been addressed in Section 258 (1) of the Evidence Act,
2011 which defines “wife and husband” to mean respectively “the wife and husband of a
marriage validly contracted under the Marriage Act, or under Islamic or Customary law
applicable in Nigeria, and includes any marriage recognized as valid under the Marriage
Act.” The implication of the recognition accorded customary and Islamic marriages is that
the testimonial privileges guaranteed under Sections 182(2), (3), (4), 183, 186 and 187 of
the Evidence Act 2011 also enure to spouses of customary and Islamic marriages thus
bringing to an end the discriminatory policy sanctioned in the repealed Evidence Act.
8. ADMISSIBILITY OF DYING DECLARATION IN JUDICIAL PROCEEDINGS
WHERE CAUSE OF DEATH COMES INTO QUESTION: Under Section 33(1) of the
repealed Evidence Act, a dying declaration, that is a statement made by a person as to the
cause of his death or as to any of the circumstances of the transaction which resulted in his
death, was rendered relevant and admissible only in trials for murder or manslaughter of
the deceased person and only when such person at the time of making such declaration
believed himself to be in danger of approaching death although he may have entertained at
the time of making it hopes of recovery. Thus, under the repealed Evidence Act, a dying
declaration was inadmissible in all judicial proceedings except those involving murder and
manslaughter. Section 40(2) of the Evidence Act, 2011 has now relaxed the restriction
contained in Section 33(1) of the repealed Evidence Act by providing that a dying
declaration “shall be admissible whatever may be the nature of the proceeding in which the
cause of death comes into question.” Thus, evidence of a dying declaration is admissible
in all judicial proceedings where the cause of death of the declarant is a fact in issue
irrespective of whether the proceeding involves murder or manslaughter.
9. EXCLUSION OF EVIDENCE UNDER THE EVIDENCE ACT OR UNDER
OTHER LEGISLATION: Prior to the coming into force of the Evidence Act 2011, the
settled principle of law was that no piece of evidence could be excluded in any judicial
proceeding except as otherwise provided by the Evidence Act. In other words, no court
43
could reject a piece of evidence except such rejection was permitted by the Evidence Act
which implied that neither the common law of England nor any other local Nigerian
legislation could form the basis for the inadmissibility of evidence. This principle was
settled by the West African Court of Appeal in R v. Agwuna, when it held that “there is no
provision in the Evidence Act which allows any evidence to be rejected as inadmissible
saved as provided in the Act itself.” Thus, where a piece of evidence was rendered
admissible under the Evidence Act, such evidence could not be excluded or rejected in any
judicial proceeding by reference to either the common law or any other Nigerian
legislation. Therefore, inadmissibility of evidence was governed by the Evidence Act
alone. Consistent with this principle, it was held in Jadesimi v. Egbe, that the common law
rules of evidence which barred the admissibility of statements made without prejudice
could not be used to exclude evidence in Nigerian courts since the matter was specifically
dealt with in Section 25 of the repealed Evidence Act. It is submitted that the above legal
position has been modified under the Evidence Act, 2011 because of the explicit provision
in Section 2 of the Act which provides that: For the avoidance of doubt, all evidence given
in accordance with section 1 shall, unless excluded in accordance with this or any other
Act or any other legislation validly in force in Nigeria be admissible in judicial proceedings
to which this Act applies. Provided that admissibility of such evidence shall be subject to
all such conditions as may be specified in each case by or under this Act. It is clear from
a literal interpretation of the above cited Section 2 of the Evidence Act, 2011 that the
exclusion, rejection or inadmissibility of evidence in any judicial proceeding is explicitly
permitted by reference to: (a) The Evidence Act, 2011; or (b) Any other Act validly in force
in Nigeria; or (c) Any other legislation validly in force in Nigeria. Thus, the Evidence Act
2011, any other Act of the National Assembly or any law passed by the House of Assembly
of a State of the Federation which is validly in force in Nigeria may provide for the
exclusion or inadmissibility of a piece of evidence in any judicial provision. For instance,
with reference to the Evidence Act, 2011, the relevancy of a piece of evidence per se is not
enough to render it admissible because in addition to its relevancy, such evidence must
satisfy such conditions as may be specified under the relevant provisions of the Act.
Therefore, although relevancy is the primary basis of admissibility of evidence, it is by no
means the only yardstick for admissibility. A court of law may lawfully reject a piece of
evidence which is otherwise relevant pursuant to the provisos to Section 1 or Section 2 of
the Evidence Act, 2011.
10. INADMISSIBILITY OF STATEMENTS CONTAINED IN DOCUMENTS
MARKED “WITHOUT PREJUDICE”: The inadmissibility of documents marked
“without prejudice” in judicial proceedings is always justified on the ground that parties to
a dispute should be encouraged to negotiate settlement or compromise without any fear
that concessions or admissions made by them in the course of the negotiations could be
used against them in court. Accordingly, statements contained in a letter marked “without
prejudice” or evidence of facts emanating from offers of compromise or attempt at
44
negotiation for out of court settlement of dispute is not admissible in evidence. Prior to the
coming into force of the Evidence Act 2011, the exclusion of such evidence had been based
on Section 25 of the repealed Evidence Act which provided that: “In civil cases no
admission is relevant, if it is made either upon an express condition that evidence of it is
not to be given or in circumstances from which the court can infer that the parties agreed
together that evidence of it should not be given.” Marking a document “without prejudice”
was thought to imply an understanding by the parties that evidence of the statements or
facts contained therein is not to be used against the maker of such document if negotiations
failed. Although Section 25 of the repealed Evidence Act has been re-enacted as Section
26 in the Evidence Act 2011, the new Act has gone a step further by enacting Section 196
as a substantive provision dealing with the exclusion of statements contained in documents
marked “without prejudice.” Section 196 of the Evidence Act 2011 provides as follows:
“A statement in any document marked “without prejudice” made in the course of
negotiation for a settlement of a dispute out of court, shall not be given in evidence in any
civil proceeding in proof of the matters stated in it.” It is clear from a literal interpretation
of Section 196 of the Evidence Act 2011 that the exclusionary rule applies only to
statements contained in documents marked “without prejudice” made in the course of
negotiation for a settlement of a dispute out of court. Thus, a document marked “without
prejudice” which was not made in the course of negotiation for a settlement of a dispute
out of court cannot be excluded pursuant to Section 196 of the Evidence Act. Section 196
of the Evidence Act, 2011 therefore has a limited application than Section 26 of the
repealed Act.
11. ADMISSIBILITY OF STATEMENT AGAINST INTEREST OF MAKER: One of
the known exceptions at common law to the rule against hearsay evidence is the
admissibility of statements or declarations made against interest. By this exception oral or
written statements of relevant facts made by deceased persons are admissible between third
persons when the statements are against their proprietary or pecuniary interest. According
to Sarkar, such statements are “received on the ground that what a man says against his
interest is in all probability true. . . The principle of admissibility is that in the ordinary
course of business a person is not likely to make a statement to his own detriment unless it
is true.” Therefore, the condition for admissibility of such statement or declaration at
common law is that the statement or declaration must be prejudicial to the pecuniary or
proprietary interest of the maker. It must be a statement by which the maker acknowledges
that his legal right to recover certain sum of money or debt from a named third party or that
his entitlement to certain estate has ceased to exist or that he holds a lesser estate than he
originally possessed. Thus, in Higham v. Ridgway, it was held that an entry in a deceased
man-midwife’s book showing that his fee for midwifery services rendered to a certain Mrs.
Fowden in respect of the birth of one Fallow had been paid was admissible in evidence as
a statement against the pecuniary interest of the maker. Similarly, in Briggs v. Wilson, it
was held that a statement made by a deceased declarant wherein he acknowledged that he
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was an illegitimate child was admissible as being against his pecuniary or proprietary
interest. However, statements or declarations against other interest, such as penal, are
inadmissible. In Sussex Peerage Case, it was held that a statement made by a deceased
clergyman which would have exposed him to criminal prosecution if alive was
inadmissible under the rule since it did not affect his proprietary or pecuniary interest. The
above common law rules were codified in Section 33(1)(c) of the Evidence Act, cap E14
which stipulated that statements, written or verbal of relevant facts made by a deceased
person against his pecuniary or proprietary interest were admissible if the person making
the statement had personal knowledge of the matter stated therein and had no interest to
misrepresent it. Therefore, under cap E14, only two forms of statement or declaration
against interest were admissible, namely statements against pecuniary interest and those
against proprietary interest. Statements against other interest such as one that would render
the maker liable to criminal prosecution or payment of damages in a civil action were
inadmissible under the Evidence Act, cap E14. In Alli v. Alesinloye, it was held by the
Supreme Court that the evidence of Ladejo Adeleke Alesinloye, a member of the
respondents’ family, who had testified on behalf of his family as a boundary man in a
previous suit involving the appellants’ family and another family to the effect that the land
in dispute belonged to the appellants’ family was admissible as a declaration against the
proprietary interest of the respondents in the land in dispute within the meaning of Section
33(1)(c) of the repealed Evidence Act. The law as currently stated in Section 42 of the
Evidence Act, 2011 makes a departure from the provisions of Section 33(1)(c) of the
repealed Evidence Act in that the restriction that the declaration would only be admissible
if it was against the pecuniary or proprietary interest of the maker has been removed.
Section 42 of the Evidence Act, 2011 recognizes declarations against four distinct interests:
(i) pecuniary interest; (ii) proprietary interest; (iii) criminal liberty; and (iv) civil liability.
Thus a statement which renders the maker liable to criminal prosecution or to damages in
civil action is admissible under the section. The implication therefore is that the decision
of the English court in Sussex Peerage Case, which excludes a declaration that will expose
the maker to criminal prosecution no longer represents the current position of the law in
Nigeria. Clearly, such declarations are admissible under Section 42(b) of the Evidence Act,
2011.
The above are innovations and reformations introduced by the Evidence Act 2011 to our legal
system.
7a
This question is a repetition of QUESTION 6a of 2020/2021. Kindly revisit it.
7a
46
The Black’s Law Dictionary defines expert evidence as evidence about a scientific, technical or
professional issue given by a person qualifies to testify because of familiarity with the subject or
special training in the field. Similarly, the court in AG Federation v Abubakar also defined an
expert as any person specially, skilled in the field he is giving evidence. The litmus test for
determining who is an expert is better captured by the questions of Lord Russel in the case of R v
Silverlock and the questions are: “Is he peritus? Is he skilled? Has he an adequate knowledge?”.
An expert is therefore not necessarily a question of professional qualification but a test of skill,
experience which is acquired from practice in a given field.
Thus, the answer is that a person who has sufficient skill and experience on a point where expert
opinion is required is the one who can give expert opinion.
CONDITIONS FOR THE ADMISSIBILITY OF EXPERT OPINION
1.
2.
3.
4.
The expert must appear in court in person to give the evidence and not by proxy.
The expert must state his pedigree.
He must state the grounds for his conclusion or expert opinion on the subject matter.
The expert must be cross-examined by the adverse party so as to test the veracity of
credibility of his testimony.
WHEN OPINION EVIDENCE IS RELEVANT
By the provisions of Section 68 (1) of the Evidence Act 2011, opinion evidence is relevant under
the following areas:
1.
2.
3.
4.
Under Section 69 of the Act, when there is a question of foreign law.
Under Section 70 of the Act, when there is a question of customary law and custom.
Under Section 72 of the Act, when there is a question as to handwriting.
Under Section 73 of the Act, when there is a question as to the existence of a general custom
or right.
5. Under Section 74 of the Act, when there is a question as to usages and tenets.
6. Under Section 75 of the Act, when there is a question as to relationship.
47
PUL 423— LAW OF EVIDENCE 2018/2019 SESSION
1.
Analyse types of Courts and proceedings in which the Evidence Act 2011 applies.
17.5%.
2.
Write notes on the distinctive characteristics of the following types of evidence:
(a) Direct and Circumstantial Evidence - 4.375%
(b) Oral and Documentary Evidence - 4.375%.
(c) Direct and Hearsay Evidence - 4.375%.
3.
4.
A and S were arrested around D/Line area of Port Harcourt on an allegation
bordering on fraud and stealing. A and made statements at the Police Station. A
made some confessional statements. Both of them were then arraigned before a
Magistrate Court. During their trial the prosecution sought to tender the confessional
statement of A to proof that both A and B are guilty of the offence as charged. But
both of them denied the offence when the charge was read to them. As a Magistrate
you are to decide:
i.
The meaning of confessional statement and the validity of the al zed
confessional statement of A sought to be used against B-8.75%.
ii
The law guiding confessional statement and the admissibility of a
confessional statement when the maker claims it was involuntary- 8.5%.
Examine admission generally and state the conditions and circumstances under the
Evidence Act 2011 when admission can be made on behalf of a person who made
it. -17.5%. .4.
5.
A and B have for long been involved in a legal tussle over ownership of land, A, the
Plaintiff, in his Statement of Claim and in his evidence-in-chief mad several
assertions which include the fact that he reported B to traditional government
authorities over the matter, and that both of them bodies. He did not produce any
witness to collaborate his assertions. B. also claimed that he had litigated with C in
respect of the land, and sought to tender a copy of the judgment of the Court in that
regard. But Counsel to A objected to the admissibility of a copy of that judgment,
arguing that the condition precedent upon which it would be admitted does not exist
in this case. As a presiding High Court Judge you are to decide:
a)
The legal issue (if any) involved in A’s failure to tender any witness with regard to
what transpired between him and 8 before the traditional institutions and local
government authorities.
48
b)
The cogency of A’s Counsel argument on the admissibility of a copy of the
judgment of the case between B and C.
6. (a) Explain thoroughly the import of the following in legal proceeding (I) Doctrine of
Recent Possession and evidence of scienter upon receiving stolen property, (ii)
principles of regularity and legitimacy. - 8.75%.
(b)
Discuss sources of Nigerian Law of Evidence. -8.75%.
ANSWERS
The questions are substantial repetitions of 2020/2021 and 2019/2020. The answers are also the
same.
DISCLAIMER
The answers provided here are to the best of my ability. They do not replace or serve as
substitute to the personal research of students.
Cc. 2022.
49