Law of Evidence
This has been the subject of different definitions by different writers.
What is Evidence
PHIBSON ON EVIDENCE stated that, evidence means "the testimony whether oral, documentary or oral, which may be legally received in order to prove or disprove some facts in dispute"CROSS stated that evidence is "the testimomy. hearsay, documents, things and facts which a court will accept as evidence of fact in issue in a given case.
A.A Zakari stated that evidence may be defined as all legal means exclusive of mere aguement which tends to prove or disprove any matter of fact in the court of law.
Working Definition of Evidence:
Evidence is the means by which fact in issue are established by a judicial tribunal.such evidence could be oral testimony of a person who actually perceived the facts, i.e. through any one of the senses,or documentary evidence which is the production of documents to prove facts which are in isue, or real evidence which is the production of material objects other than documents. in sumary, the law of evidence deals with the use of evidence to establish or prove fact on which Claims, charges and defences of litigants are based before a judicial are based before a judicial tribunal.
What is the use of Evidence in legal Practice?
A legal practitioner would lose his case without his being able to do well in evidence. Everything a lawyer needs to do in th law court hinges upon the law of evidence. This is because evidence cuts across all facts relating to legal practice whether criminal or civil.It is often said that a judge cannot penetrate human mind. He can only go by the evidence adduced before him by the lawyer.
The basic questions a lawyer must ask himsef are these:
1. What am I supposed to do?
2. How am I supposed to go about doing such?
Advocacy is the bedrock of legal practice. Hence, a lawyer should be very articulate and skillful in the act of advocacy. In every given case, a lawyer should lay proper and adequate foundation before presenting his evidence in court.
Scope of Law Evidence
In relation to legal procedings, there are two broad divisions of law namely subtantive or abjectival or adjective law.(a) Substantive law: this defines rights, duties and liabilities of parties to a transaction in issue.
Substantive law is a generic term embracing such subject as the law of torts, contract and crimes. It is also concerned with statements of rights, duties and liabilities are grounded.
(b) Adjectival or adjective law:
This governs the machinery by which substantive law is applied in practice. it regulates the conduct of litigation and it is concerned with establishing the facts upon which rights duties and liabilities are founded in essence adjectival laws provide the platform upon which duties and liabilities are grounded Adjectival law therefore comprises of procedure and evidence the term procedure is often used to embrace evidence espcially in proceedings where evidence is required.
Rules of Evidence
The rules of evidence are said to have evolved or have been formulated to assist in the determination of four principal problems:
1. Upon whom rests the burden of proving facts?
The answer to the question is not a clear-cut one. for example A2Z is accused by LBC of stealing his shirt. the burden of proof rests on LBC. Again, A2Z is accused of murder, and he pleads insanity as a defence this is a unique case as the burden of proof would rest on A2Z since he is in best position to prove his insanity this is against the background of the presumption of sanity as regarding every man that is seen on the street.
2. What facts may be proved?
generally, party must prove every material that upon which he intends to rely by adducing sufficient evidence for example LBC is accused of stealing A2Z car the prosecution must establish by adducing sufficient evidence that LBC fraudulently took A2Z car or that LBC fraudulently converted same to his own use or to the use of another person. But, there are exceptions to these rules especially in cases of facts of which the courts may take judicial notice or in cases of civil proceedings where there are formal admissions of fact made before the pleadings.
3. What facts ought to be excluded from court's cognizance?
Not all facts relating to a case ozr a matter may be presented before the courts. Generally, proofs of facts in issue and of facts relevant to facts in issue are admissible. for example, the fact that Bamama was seen driving A2Z car is relevant to the fact in issue which is the theft of the car. the point that not all facts relating to a case is presented to the law court, is responsible for the general rule tha parties to an action are not generally allow to give evidence of their reputation, painting them to be of good character.
4. What modes of proof are acceptable?
As a general rule, the Nigerian legal system recognises particular kinds of proof only. For example, proof by oral evidence, proof by real evidence, proof by electronic gadgets, proof by documdntary evidence, and in modern times. However, their are exceptions to these wide general rules.
Question
What should a cousel do when his client in a criminal case admits to him in chamber that he indeed committed the offence charged?
(a) Advise him to raise a preliminary objection upon arrangement
(b) Seriously consider declining the brief
(c) Advise him pleade not guilty and allow the prosecution prove its case
(d) Advise him to plead guilty giving insanity as excuse
Sources of Nigeria law of evidence
Evidence ACT:
The main source of Nigeria law of evidence is evidence act. The Act passed in 1943 as "evidence ordinance, came into operation in 1945. The provisions of that Act were taken from the Digest of the law of evidence of sir James fitze Gerald Stephen. Before 1945, the law of evidence applicable in the magistrate court and in the high Court, then know as the supreme court, was the English common law of evidence. The authority for the application of English common law of evidence are contained in some of the legislation enacted in the colonial days e.g S.10 provincial Court ordinance 1914, S13 protectorate courts ordinance 1933; S30 magistrate court ordinance 1943; S14. Supreme court ordinance 1943; Ordinance No.4- S.4 of 1876 provided for the application of the English common law, Equity and statute of General Application (SOGA) passed on or before 1900.At the time of Passing of the Act, the country had a unitary system of government, therefore, its application was countrywide. This universal application of the Act continued also after the introduction of federalism, and this was brought about in this manner. Evidence Act is the main source of law of evidence in Nigeria.
However, the English common law of evidence or any relevant statute may be resorted to S.3 of the evidence Act States thus:
" Nothing in this act shall be prejudice the admissible of any evidence which would, apart from the provision of the Act, be admissible "
The evidence which would have been admissible apart from the provision of the Act is evidence admissible under the common law and under any other Nigeria statute. The explanation for this is from the fact that English common law of evidence was in operation before the enactment of the Nigerian evidence Act S.3 (a) is essential useful where the Nigerian evidence Act has not provide for admissibility of any fact or matter which has been provided under the English common law rule. West African Court of Appeal in the case of Onyeanusi vs Okpukpara (1953) 14 WACA 311, stated
"It is the evidence Act or if it is silent the common law of England that applies in the high court" See the case of R vs Itule
What is Fact?
Under the provision of the evidence Act, S.258(1) evidence Act, 2011 a fact include:(a) anything, state of things or relation of things capable of being perceived by the senses; and
(b) any mental condition of which any person is conscious. Under the Act, a fact is said to be-
"Proved" when after considering the matter before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of a particular case, to Act upon the supposition that it does exist. S.121 (a).
"disproved" when after considering the matter before it the court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist. S.121.(b).
"not proved" when it is neither proved nor disproved, a fact is said to be not proved. S121(c).
A fact should be distinguished from law. A Court of law is presumed to know the law since the rule of law could be shown to exist by making references to the statute which enacted it or to the desition of court which embodies it or to relevant authoritative textbook.
Opinion differ from fact. Opinions are formed by individual persons on facts. Opinions are subjective because they vary from person to person on the same facts. Relative to its nature, opinion of a witness is not allowed to be given in evidence ( note exception in expert opinion).
It is the function of the court to form its opinion as to the effects of facts adduced before it. But, the opinion of the court must be based on the facts before it; it is not allowed to being in extraneous matter.
What is an argument?
It is used in the process of proof of one fact from another or other facts. The relationship between argument and facts is that evidence provides fact upon which arguments are based. Arguments in legal proceedings are used to persuade the court to accept the case of a party as being true and correct. Argument involve drawing right inference form fact proved as well as drawing legal implication or conclusions from those fact and inferences.
General classification
The term fact apply generally to whatever is the subject of perception or consciousness. The term, when in use in the law of evidence must be differentiate from its meaning in usage.
What is Fact in issue
These are fact necessary in order to prove or disprove, to establish or refute a case. Facts in issue therefore are those necessary by law for the plaintiff in civil case to establish his claim and those the Defendant must prove in order to make out his defence. Fact in issue are those which by the pleadings are in disputes (As.4 & 5 E.A. 2011).Under the Act, a fact in issue seems to seems to mean any fact which:
a. A party must prove to establish his case or defence
b. Affects the credibility of any witness or the admissibility of any piece of evidence. See Olufosoye V. Olorrunfemi (1989) I NWLR (pt.95) 26, the supreme court held that an admitted fact is not in issue. It is only when facts are in dispute that they said to be in issue.
Generally, fact in issue are determined by substantive law and in civil cases, by pleadings also. In criminal cases, the charge takes place of pleadings and the facts in issue are those ingredients of the offence which must be established or proved by the prosecution in order to sustain the charge and those to be proved by the accused to sustain any defence to the charge.
iii. Relevant Facts S.1
A fact in issue must be established, by fact which the Act regard as relevant. After times what sounds logically relevant may not be relevant to fact in issue, hence the need to follow the rules laid down by the Act, ie. Only evidence which the Act declares relevant is admissible to prove a fact. Evidence of other occurrences which merely tend to deepen suspicion is thus not admissible. See Harris DPP (1952) A.C. 708.If A sues B for trespass to A'S land; evidence of possession of the land by A, the wrongful entry on the land by B, the fact that B has no legal reason for entering there on are relevant. Evidence of A's inability to pay his water rates or NEPA bills are not relevant to the fact in issue and therefore cannot be admitted.
Relevancy and Admissibility
Generally, fact in issue often referred to as "logically probative facts" pertain to facts from which facts in issue or relevant fact may be inferred.in other words fact which as a matter of ordinary logic tend to render the existence of other facts probable or improbable are relevant facts to those other facts. Facts which are non-relevant for the purpose of establishing a fact in issue are inadmissible ForFor exampdle-X cannot testify that Y slapped Z to prove defamation.Relevancy under the Act has been said to arise either because it is therein stated to exist between particular set of facts or because of the logical connection between facts generally. The reception of evidence of facts in issue or of relevant facts is limited especially where it offends against any rule of law. No matter how relevant that fact may be, once the law prohibits its prool, no evidence of it can be given. Section 1(b) of the Act states thus:
"The section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force."
Relevance and admissibility are closely related terms but with certain distinctions, while relevance is based on ordinary logic, admissibility depends on law.see mills versus The state (1988) 2 NWLRD (pt.11) 190.
The supreme court stated in Agunbiade versus Sasegbon (1968) N.M.L.R 223 at p. 226 per coker J.S.C that "admissible evidence under the Act is evidence which is relevant and it should be borne in mind that what is not relevant is not admissible."
Relevant fact would not be excluded at law except it offends against a particular statutory provision or rule of law. See Sadau and Anor. Versus The state (1968) I All N.L.R 124.
a. Direct and Circumstantial evidence:
These are the two basic types of evidence. Direct evidence is the evidence of an eye witness or conclusive document tendered to prove a fact in issue. Circumstantial evidence arises when, a judge is permitted to raise a presumption from the proof of some facts the existence of other facts without further proof of that other fact. Circumstantial evidence is receivable in criminal and civil cases, and, indeed, the necessity of admitting circumstantial evidence in criminal cases is more than in civil cases because the possibility of proving the offence charged by direct and positive testimony of eye witnesses or by conclusive documents is rarer than in civil cases. To convict on the basis of circumstantial evidence, it should not only be cogent, complete, unequivocal, and positive, it must be compelling and lead to an irresistible conclusion that the accused and other person committed the offence.
b. Direct and hearsay evidence:
oral evidence must, in all cases whatever, be direct. However hear say evidence are generally inadmissible but there exceptions I.e statement made by person who is death, can not be found etc. See(S.37-40)
C. Oral, documentary, and real evidence:
These are the forms of evidence. Oral evidence tales the form or testimonies of witnesses in court.Documentary evidence deals with statements contained in documents.Real evidence deals with things such as material objects.
d. primary and secondary evidence:
This classification relates to documentary evidence. primary evidence is the original document itself,the best evidence. Secondary evidence may be photocopy, or testimony of the content of a document or certified true copy.
e. computer generated documents:
The Act currently embodied statements in produced by computers after satisfying certain conditions. See sec. 84 of the Act.
Proof of facts
All facts in issue or relevant to the issue must be proved by evidence. But parties need not adduce evidence to the following:
a. Facts judicially noticed;
b. Facts admitted; or
c. Facts of common knowledge.
d. Facts presumed
Facts judicially noticed
When a Court takes judicial notice of a fact, it means that the Court will find that the fact exist, although it's existence has not been established by evidence. See S.122 of the Act.There are two categories of facts that can be judicially noticed:
a. Facts which the court must take judicially notice of.
b. Facts which the court may in it's discretion take judicial notice of, there are two categories such facts:
* Notorious facts: a fact may be so notorious that it cannot be the subject of serious dispute. For example, that there is inflation in Nigeria, that rents are very high in Abuja.
* Certain customs.
Facts Admitted
(See S.123 of the Act)This is more applicable in civil cases.
There are two types of admission:
a. Information admissionsb. Formal admissions.
Formal Admissions
A formal Admissions can be made in any of the following ways:
a. By pleadings
b. By Counsel
c. In answer to notice to admit
d. In answer to interrogations
e. By agreement of the parties.
Informal admissions are admissions not exactly conclusive but generally suggestive. They operate mostly as pleas of estoppel rather than plain admission.
differences between formal and informal admissions
The differences between formal and informal admissionsa. Formal admissions are made only in the course of proceedings, they are conclusive and dispenses with any need for proof. While informal admissions are not conclusive and do not dispenses with the need for proof.
b. Formal admissions operate only in the proceedings to which they relate.
Informal admissions are not confined in their scope to the particular proceedings in which they are made.
Facts of common knowledge
Section. 124 of the Act provides that a proof shall not be required of a fact the knowledge of which is not reasonable open to question and which is:a. Common knowledge in the locality in which the proceedings is being held.
b. Capable of verification by reference to a document the authority of which cannot be reasonably be questioned.
Presumption (S.145-168)
A presumption means a conclusion that can be inferred from the existence of certain facts; it is therefore regarded as a substitute to evidence.
Types of presumption
a. Rebuttable presumptionsb. Irrebuttable presumptions
Black's law Dictionary (6th ed) at page 1267 describes Rebuttable presumption as specie of legal presumption which holds good until evidence contrary to it is introduced. Rebuttable presumption provides a prima facie case which shifts to the accused or defendant the burden to contradict or rebut the fact presumed.
Classification of presumption
a. Presumption of lawb. Presumption of fact.
The use of the word 'may' can be used to refer to presumption of law.
Difference between presumption of law and a presumption of facts
They are five differences between presumption of law and presumption of fact:
a. Presumptions of law are provided for by the law; but presumption of facts are provided for by logical reasoning.
b. A presumption of law may be rebuttable or not rebuttable; but all presumptions of fact are rebuttable.
c. The facts that lead to presumption of law are defined and uniform; but the facts that lead to presumption of fact depend on the circumstances of each case, they fluctuate.
d. A rebuttable presumption of law is relevant depending where the burden of proof lies; but presumption of fact do not affect the burden of proof.
e. Presumption of law are drawn by the judge; but presumptions of fact are drawn by the jury or a judge sitting alone.
Presumption of facts
Section 145 of the Act provides for the general power of the court to presume the existence of certain facts which it thinks is likely to happen in the ordinary course of events. All presumptions of fact are rebuttable.
Presumption of law
There are two types of presumption of law:
a. Irrebuttable presumption of law
b. Rebuttable presumption of law
Irrebuttable presumption of law.Irrebuttable Presumption of law are strictly speaking not a branch of the law of evidence rather they are rules of the various branches of law. For example, under section 30 of the criminal code there is irrebuttable presumption that a person under the age of 7 years is not criminally responsible for any act or omission committed by him.
Rebuttable presumptions of law
Rebuttable presumptions of law are conclusions which a Court must drawn from the evidence of certain premises or Facts.The following are some rebuttable presumptions of law:
a. Presumption of Innocence: under section 36(5) of 1999 constitution, every person charged with an offence is presumed innocent until contrary is proved. b. Presumption of marriage: where a man and woman have undergone a celebrated marriage ceremony as husband and wife, there is presumption of marriage. The leading case here is piers vs piers (1849) 2 H.L Cas. 331 where the marriage was celebrated in a private house, which is neither a church nor a marriage registry nevertheless, the presumption is applicable. Also check sec.166 of the Act.
c. Presumption of Legitimacy: under section 165 of the Act and section 84 of the matrimonial Cause Act where a child is born during the continuance of valid marriage between his mother and any man or within 280 days after its dissolution, the mother remaining unmarried, the Court shall presume that the child is the legitimate Child of the man, and only very strong evidence can rebut this presumption.
d. Presumption of sanity: under section 27 of the criminal code every person is presumed to be of sound mind until the contrary is proved.
e. Presumption of Death: under section 164 of the Act there are two kind of presumptions:
Section 164(1) of the Act deals with the unexplained absence of a person for 7 years by thise, if any, who, if he had been alive would naturally have heard of him. Such a person is presumed dead unless the circumstances of the case are such as to account for his not being heard of without assuming his death. Section 164(3) of the Act provides that the presumption in section 164(1) relates only to fact of death not the age when the person died.
Section 164(2) of the Act deals with the issue of determining who, of two or more persons died First for the purpose of succession to property. The senior is presumed to died before the younger. This is called the doctrine of commorientes.
f. Presumption of negligence: this is the doctrine of res ipsa loquitor which means that the thing speak for itself. For example, where X is driving a car and he skid off the road to hit a nearby building. The presumption of negligence is applied because the fact that the accident occurred is evidence of negligence: Management Enterprises Ltd vs Otusanya (1987) 2 NWLR 179.
Doctrine of Estoppel
Extoppel is a rule which bars a party to a suit from ascertaining or denying a particular fact. Estoppel is a rule of exclusion thus making evidence of a relevant fact inadmissible.In other words, where a person is stopped from giving certain evidence, the effect is that the evidence become inadmissible. Though the word is used in sec.169-174, it is not defined in the evidence Act.
Is Estoppel a rule of pleadings, evidence, substantive law or merely an irrebuttable presumption?
A party seeking to rely on the doctrine must specifically plead it or give the facts to be relied on. Generally, Estoppel ha no place in the statement of claim but can be a whole defence in the statement of defense. Estoppel is similar to an irrebuttable presumption of law. However, while Estoppel could be waved, an irrebuttable presumption cannot be waved. We can say therefore that Estoppel has a bearing on all, but any party wishing to rely on it must specifically plead it. Chellaram & son's vs Ollivant Ltd. (1944) 10 WACA 77. When a judgement is a relevant fact in a case, it is admissible even if not pleaded see Sec.174 of the evidence Act 2011.There is a difference between Estoppel simpliciter and Estoppel per rem judicata. While Estoppel simpliciter operates against the parties, as in Estoppel by conduct, per rem judicata operates not only against the parties but also the Court jurisdiction. See Coker vs Sanyaolu (1976) 9-10 S.C.
In Balogun vs Adejoke (1995) 2 NWLR 131, it was held that Estoppel can be classified into four, namely:
a. Estoppel by record
b. Estoppel by conduct
c. Estoppel by agreement
d. Estoppel by deed
a. Estoppel by Record: Estoppel by record is further divided into two:
(i) Cause of action Estoppel:
This is usually referred to as Estoppel per rem judicata. In essence, where a course of action which was subject of an earlier litigation between the same parties had been adjudicated upon by a Court of competent jurisdiction, is brought again in a subsequent proceeding between the same parties, the subsequent plaintiff will be barred or Estopped per rem judicare from bringing it. In such a case, the earlier judgement is res judicata I.e a matter adjudged or a thing judicially acted upon or decided or thing or matter settled by judgement. This specie of Estoppel is also called "Estoppel by judgement" because it arises from the judgement of a court. See the case of fadiora & Anor vs Gbadebo & Anor (1978) 3 S.C 219.
(II) Issue Estoppel:
in a course of action, many issues may arise. Issue Estoppel is to the effect that a fact in a issue in the first cause of action has been decided by the court and that same fact crops up subsequently in a suit between the parties, none of them will be allowed to dispute or deny the decision of the court in the previous proceedings. Hill vs Hill (1954) P.D. 291. In the case of continuing trespass, successive actions can be brought from time to time as issue Estoppel will not arise. See Adepoju vs Oke (1999) 3 SCNJ 46 @ 55-56.Rational behind the doctrine Estoppel by record is predicted on rule of public policy, that it is for the common good that there should be an end to litigation. Also that on one should be sued twice on the same ground. See Omokhafe vs Esekhane (1993) 8 NWLR 58.
Operation of the doctrine
Section 173 of the evidence Act provides:Parties must be the same: parties in the two proceedings must be the same. Parties include not only the parties named in the writ but privies to such parties.
Privies are in three categories:
i. In blood e.g ancestor and heir;
ii. In estate e.g lessor and lessee;
iii. In law e.g testator and executor.
b. Issues and subject matter must be the same: Another condition is that the issues and subject matter in the two cases must be the same. Estoppel will not operate if the issues and subject matter are different.
A party will note be allowed to split a cause of action in to two PR more and litigate it in parts. C. Court of competent jurisdiction: A third condition is that the court that the court that heard the first suit must be a court of competence jurisdiction.
D. Previous decision must have finally decided the issues between the parties: Even if the above three conditions are met,estoppel will not operate where there is a valid and subsisting judgement that has decided all the issues between the parties.
b. Estoppel by conduct:
This is provided for in S.169 E.A. it is to the effect that when there is an intentionall representation that is to been acted on by the other party,the first party will be estoped from denying the existence of the state affairs-iga&ors. V.amakiri&ors.
(c). Estoppel by deed:
this is not provided for in the evidence act but it is a common law rule. It is to the effect that where a party or his privy had executed a deed or an instrument under seal,he will be Estoppel by a court from ascertain that he fact stated therein are untrue.
(d). Estoppel in criminal cases:
S.36(a) 1999 constitution. In a criminal matters,the doctrine of rem judicate operate in another form referred to as autre fois acquire or autre fois convict.
Admission and confessions. admission:
an admission is simply a confession to an alleged fact. In ordinary parlance, it is possible to admit a fact without conceding it.
Formal admissions:
These are admission contained in pleading pending litigation. The fact so admitted in the pleading are usually taken as established without any further proof.
Informal admission:
Byy virtue of S.19 Evidence act, an informal admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact made by any person and in any of the circumstances contained in As.21-23 of the evidence act.
Person who can make admissions
(a) party to proceeding: by virtue of virtue of S.24 such admission are relevant and admission against the person making but not in his favour.(b) an agent of a party to a procceding: By S.21 (1)the evidence act recognized that an agent may under certain circumstance make admission which will bind his principal.
(c) A person suing or sued in representative capacity: by virtue of S.21(2), this category of admission will be valid if it was made by him at the time he was acting in that character.
(d) person having proprietary or pecuiniary interest: provided the admission was made in the character of a person having such an interestinterest. See S.21(3)(a)
(e) Predecessor in title: Provide the admission was made during the subsistence of such an interest - S.21 (2)(b).
(f) Admissions by person whose position must be proved as against a party to a suit: Under S.22, where it is necessary to show the position or liability of X as Against A in a suit between A and another, any statement would be relevant as against X had a suit been brought against him, provided he made the statement at the time he occupied such position or was subject to such liability.
(g) Admission by person expressly referred to by a party to a suit:
This is provided for by S.23 Evidence Act. Under this section, any statement made by a person to whom a party to a matter in dispute, is an admission. Although a legal practitioner can make a formal admission on behalf of his client, he cannot do so In the case of an informal admission.
An admission by a wife cannot bind her husband and vice versa, unless the relationship between them comes within one of those discussed above.
Aside from the forgoing exception s, an admission is admissible in evidence party. See stanza v. Attah (1999) 3 NWLR Pt.596 @647.
Confession:
A confession is defined as a statement made by any person charge with a crime at any time stating or suggesting the inference that he committed the offence. See S.28 E.A. 2011; See Ikemson v. The State (1989) 3 NWLW pt.110 @ 455.
Confessional statements
Confessional Statement are usually the best means by which criminal cases are established. There must however be no controversy of any soft as to whether or not it was voluntary made. It will be admissible against the person who made it only-S.29(2). The courts have held that conviction for any crime may be based on a single confession if voluntary made.
Voluntary confession:
unlike the repealed evidence Act, the new act gave conditions that make confession was evaded. The onus of proving affirmatively beyond reasonable doubt that a confession is voluntary rests on prosecution.There is no basis therefore for the practice by some Nigerian courts to fall back on English common law in deciding that is voluntary confession. It is submitted that the proper approach is to hold that any confession that does not come within any of these conditions listed in S.29(2) will be relevant and admitted under S.29(2) as being voluntry.
A cursory look at S.29 (a&b) show a number of key points that require closer examination.
1. Oppression: An inducement need not be aimed at making the accused speak the truth in a case, suffice if he is intimidated to make a statement at all by persons in authority.
2. Threats: Any confession statement obtained consequent upon the use or the threat of the use of actual violence to the body of the accused, will be deemed to be vitiated.
Trial Within A Trial:
If in the course of trying an accused person he objects through his counsel to the admission of a confessional statement on the ground that it was extracted from him by force, the trial judge will at once be voluntariness or otherwise of the said statement. See Obidiozo vs The State (1987) 4 NWLR Pt.67 @748.
Judges rule and its application in Nigeria
In England, the manner in which the police should take evidence from persons connected with crimes was dealt with in the judges rules. These rules, which were first formulated in 1912 and modified in 1964 at the request of the home office for the guidance of the police, has as its aim that was held out in R. Vs Voisin (1981) 1 K.B. 531 at 539 thus;"These rules have not the force of law, they are administrative directions, the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice".
They are the rules of administrative practice and not rule of law, hence the mere failure to observe any of them in the talking of a statement from a person charged with the commission of an offence will not necessarily render the statement in evidence inadmissible. See R. Vs Day (1952) 36 CAR 92.
A brief examination of the 1964 judges will be instructive.
1. When a police officer is trying to discover whether or by whom an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks that useful information will be obtained.
2. As soon as the person has committed an offence, he shall caution the person before putting to him any question relating to the offence.
The cautionary words shall be as follows:
"You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence;
Therefore, a record shall be kept of the time and place at which any such questioning or statements began and ended and of the person present.
3. Where a person is charged or informed that he may be prosecuted for an offence, he shall be cautioned in the following terms:
"Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence".
4. The other rules relates to written statement made after caution and the mode in which such statements must be recorded.
Official and privileged communication
Generally, every person is competent to give evidence and may be compellable. However, under certain circumstances, a person may be able to claim privilege from answering certain questions. A witness can claim the privilege or a counsel can make a claim on his behalf. Sometimes, the judge tells the witness that he need not answer the particular question. Thus, this privilege is a rule of exclusion. The rationale behind such privileges is to protect state security or the sanctity of marriage or the privacy of an individual or exclusion of some facts on grounds of public policy and morality.There is paucity of reported Nigerian cases in this area of law.
This is so because most claims for privileges are usually by way of interlocutory applications.
The following are the official and privileged communications provided by the Act:
(a) communications during marriage
(b)Judges, magistrates and jurors
(c) Information as to the commission of an offence
(d) Affairs of state
(e) Professional communications
(f) Production of title deeds and other documents
(g) Privilege against self incrimination
(h) Statements made without prejudice.
Means of proof
There are three basic means of proof in the law of evidence namely:-Oral, Real and Documentary Evidence.
Oral Evidence
Oral evidence is the verbal assertion on oath of a witness offered in Court as proof of that which is stated. See S.126 of evidence Act. According to S.77 oral evidence must in all cases be direct.
Real Evidence:
Real Evidence S.127 (d) E.A. dealt with the production of a material thing. It is anything other than testimony, admission hearsay or a document the content of which is offered as testimonial evidence. The material thing in question may be movable or immovable. If movable e.g matchet, gun, dresses e.t.c., they are tendered in Court as exhibits. If immovable e.g. land, property attached to land or the scene of an accident or murder, and the court take the view that an inspection is cogent and material to the proper determination of the questions in dispute. The procedure laid down in S.127 (2) E.A. must be followed. This procedure is better known as visit to the locus in quo.
Visit To Locus In Quo:
The power of the presiding judge to conduct a visit to a locus in quo is derived from S.127 (b)Two procedures are basis for the conduct of a visit to the locus in quo. See S.127 (2) (a- b)
(I) The court shall either be adjourned to the place where the subject matter of the said inspection may be and the proceedings shall continued at that place until the court further adjourns back to its original place of sitting or to some other place of sitting.
It is the trial judge that conducts the visit and not anyone else on his behalf.
(II) The court shall attend and make an inspection of the subject matter only; evidence, if any, of what transpired there being given in court afterwards.
It is usual to to carry out an inspection before the close of the case for both sides. It is permissible to carry out the inspection after the judgement has been reserved. Whenever the inspection is done the parties should be given a right to cross-examine themselves and the counsel a right to further address the Court, if necessary.
Consequences of Non-Nompliance: This depends on the effect on the judgement as a whole. See S.251 of evidence Act.
Exclusion Of Oral Evidence By Documentary Evidence
Sometimes a document is tendered and admitted and objection raised against such document. The contents of such document may be proved by either primary or secondary evidence. See S.128. The general rule is that the document should speak for itself and extrinsic evidence cannot be adduced to contradict, alter, add to or very the contents of such document.Exceptions; these are contained in S.128 (1) (a-e) and in S.129(2) and (3)
Also, Oral evidence can be given if what is to be proved is the existence of the relationship and not the terms on which it was established or carried on. See Odunsi vs Bamgbala (1995) I SCNJ 271 at 291
Rule Against Hearsay Evidence
The Rule against Hearsay Evidence is;
The provision of S.126 (a-d) evidence Act, 2011, provides among others that "Oral evidence must, in all cases whatever, be direct"
This provision, therefore, makes hearsay evidence inadmissible.
Rationale for the Rule: (1) The unreliability of the original maker of the statement who is not in court and not cross-examined.
(2) The depression of the truth arising from repetition.
(3) Opportunity for fraud
(4) The admission of hearsay evidence trends to encourage the substitution of weaker for stronger evidence.
Exceptions To The Rule: The hearsay rule is Better known for it's numerous exceptions than the rule itself.
They are:
(a) Dying Declaration = S.39(a) of evidence Act
(b) Evidence of traditional or communal history of land = S.43 of evidence Act
(c) Admissibility of documents under S.83
(d) Admission under S. 20
(e) Confession S.28
(f) Affidavit evidence: S.108
(g) Res Geatae S.4
(h) Expert Opinion S.68-71
(i) Evidence admitted on the principle of corporate personality. Kate enterprises Ltd vs Nigeria Ltd (1985) 7 S.C.I.
Evidence of Character
Under the law of evidence, character means reputation as distinguished from disposition. Evidence may be given only of general reputation and not of particular acts by a person. See S.77-81 of evidence ActEvidence of bad character in civil cases: S.78. Examples are as follows
(1) where in a defamation case the defendant sets up a defence of justification. See Goody vs Odhams press Ltd. (1966) 3 WLR 400
(2) The fact that the character of any person is such as to effect the amont of damages which he ought to receive is relevant S.79 E.A
(3) Where a Party testifies, his character becomes relevant as it affected his credit. (4) character becomes relevant in an action for breach of promise to marry. Bad character may constitute a defence for the reputation of such promise.
Character of Evidence in criminal cases S.81
Evidence of good character of the accused person is relevant and admissible In criminal cases. See Haruna vs Police (1967) NMLR 145
Evidence of bad character:
Evidence that the accused is of bad character is generally irrevant in criminal processing S.82 (2) E.A., R. Vs Olubunmi (1958) 3 FSC 8.The Rationale for the exclusion of evidence of bad character is that it may prejudice the mind of the court. It may be also lead the court to hasty conclusion that he accused committed the offence.
They are exceptions to this rule, which are:
(1) When a character of the accused person is a fact in issue.
(2) Rebuttal of evidence of hood character by accused.
(3) Evidence of bad character.
(4) Cases relating to stolen property.
(5) Cases relating to rape or indecent assaults.
(6) Where accused person has given evidence against any other person charged with the same offence.
Opinion Evidence
A witness will be disallowed from given his opinion as to the existence or non-existence of a fact in issue or relevant fact as such opinion will be irrelevant. See S.67. It is only a court that are capable of drawing inference and conclusion. However there are exceptions created under section 68 to 70 of evidence Act, 2011. The exceptions cover opinion of experts and non experts.
Expert Opinion:
An expert is a person skilled and competent in the area of specialization in which he is given evidence. See S.62 (2) of evidence Act.An expert is defined in S.68 of evidence act.
The question who is an expert is determined by the judge. Also "skill" for this purpose is not determined only by academic qualification but also by experience.
It is the duty of the opposing counsel to cross examine an expert witness as to his qualification or experience where the expertise of such a witness is in doubt.
Where the opinion of the expert conflicts or is inconsistent with common sense and logic the court will reject it.
Okoh vs state (1971) 1 NMLR. 140
Expert Evidence Expressed in Text Books:
If the opinion of a renowned expert expressed in a textbook is to be tendered in a court and such expert cannot be called as a witness, such an opinion must be presented by another expert in the same field, Concha vs murieta 1889 CH.D 543. However read S.126(d)(i) of evidence act. As to the use of such textbooks without the necessary of confirmation by another expert. See Osolu vs Osolu (1998) 1 NWLR (pt.535) 523.Opinion On Point Of Science Or Art: S.68 of evidence Act see Oguonzee vs state (1998) 5 NWLR (pt.55) 521
Opinion As To Foreign Law: S.57(1), S.69(1) of evidence Act see the case of Barford vs Barford and Mcleod (1981) p.140
Opinion As To Native Law And Custom: S.70 E.A., see also S.(1)-(3) E.A
Opinion As To Handwriting.
S72 E.A: Opinion of experts and non- expert are relevant. See the case of R. Vs Coleman 6 Cox 163A person is said to be acquainted with the handwriting of another person in the following cases:
(i) if he has seen that other person write.
(ii) if he has received documents purported to be written by that other person in answer to documents to the other party.
(iii) if he has had documents purported to be written by that person habitually submitted to him. S.72(2) E.A.
Other Instances where Opinion Evidence Are Relevant
(i) Age
(ii) Insanity: could be given by an expert or non expert. S.57 E.A.
(iii) Health
(iv) Intoxication
(v) Speed
(vi) Value
(vii) Passing Off, Trade marks, e.t.c
(viii) Identity
Identification Of Parade
This is the process whereby a suspected person is placed amongst other people of similar physical appearance, height, colour, age and social status to ascertain whether or not witnesses to the offence are capable of recognizing him. It is essential in the following situations:-
(1) Where the victim was confronted by the offender for a very short time.
(2) Where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused person
(3) Where the accused is not know to the victim before the commission of the offence.
The following conditions must be observed:
(a) witness should not be allowed to be see the suspect before he is place in the parade.
(b) witness must not be allowed to see the suspect nor should be assisted by any form of description of the suspect.
(c) The cloth worn by the suspect must not be worn during the identification parade.
Where the suspect is known to the victim, identification parade is unnecessary. See Aladeu vs State.
Effect of Non-Compliance:
Failure to follow strictly the conditions listed above for identification of a suspect does not render the evidence inadmissible but goes to the weight to be attached to such identification. Any conviction based on such identification may be quashed on appeal.Evidence based on identification should consider the following principles:
(a) How long did the witness have the accused under observation?
(b) At what distance?
(c) In what light?
(d) was the observation impended in any way e.g passing of Traffic?
(e) How often?
(f) Is there any special reason for remembering the accused?
(g) How much time elapsed between the original observation and the subsequent identification.
Borden Of Proof
Section 131 states(1) "whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person."
The law of evidence is all about proof of a particular issue. Proof in its legal meaning is the process by which the existence or non existence of facts is established to the satisfaction of the court. Burden of proof can be divided into:
(1) Legal burden.
(2) Evidential burden.
(3) Burden on the pleadings.
See sections 133, (1-3) 139 (1-3) E.A.
The total essence of burden of proof may be crucial to the outcome of any case.
Who Must Prove?
The general principle is that he who alleges or asserts must prove. S.132 E.A.
Incidents Of The Burden
In Criminal Cases: S.139 (1-3) E.A S.36(5) 1999 Constitution of the federal Republic of Nigeria. Against the background of presumption of innocence and the rule that he who asserts must prove, the general burden of proving the guilt of the accused rests on the prosecution.Exception To The General Rule: S.139 E.A
(1) Defence of Insanity and Intoxication
S.141 E.A S.28 and 29 of criminal code. S.217 CPA, A.
(2) Proof of special Plea: autrefois acquit or autrefois convict Section 181 & 182 CPA; S.36(9) 1999 constitution of federal Republic of Nigeria.
(3) Facts within the knowledge of the accused. S.140 E.A
(4) Burden of Proving Exemption, Exception or qualification S.141.
(5) Burden Imposed by other statutes: S.417(d) of criminal code
Exception of burden of proof In Civil Cases:
The onus of proof in civil cases does not remain static but shifts from side to side. See Sec.133(1) and (2) of Evidence Act 2011The position is that the onus of adducing further evidence is on the person who would fail if such evidence were not produced.
These exceptions are found more under presumptions.
(1) Presumption of Legitimacy: S.115 MCA & S.165 of evidence Act
(2) presumption of marriage- piers vs piers S.166 E.A
(3) presumption of Death: S.164(1) E.A
(4) presumption of Regularity: Nwobodo vs Onoh (1984) 1 S.C.1
(5) presumption of possession: Adenle vs Oyegbade (1964) NWLR 136
(6) Res ipsa loquitor: olatunde Thompson & ors vs S.O. Adefope 19731 All NLR.322.
(7) Admitted facts S.20 E.A
(8) Facts judicial noticed
Standard of proof
The standard of proof in criminal cases is beyond reasonable doubts. See S.135 of evidence act Whereas in civil cases the proof is that of preponderance of probability or balance of probabilities in his favour. See S.134 E.A where there is allegation of crime in civil proceedings, it must be proved beyond reasonable doubt.
Corroboration
Corroboration is "a conformation of a witness's evidence by independent testimony" Nwambe vs the state (1995) 3 SCNJ 77 at 97. According to S.200(1) of the evidence Act,""Except as provided in section 201-204 of this Act, no particular number of witnesses shall, in any case, be required for the proof of any fact"
A person can be convicted of any offence upon evidence on oath of a single adult witness. See Salish Babuga vs State (1996) SCNJ 217.
Exceptions To The Rule
1. Evidence of an Accomplice: S.198(1) E.A (2011)2. Evidence of Co-accused S.198 E.A
3. Unsworn Evidence of Children: S.209(1) E.A
4.Treason and Treasonable offences S. 201 E.A
Exception In Civil Cases:- S 197 E.A
1. Breach of promise to marry
When did corroboration required?
Cases where corroboration is required as a matter of practice.1. Sexual offences generally e.g Rape. See Sunmonu vs police (1957) W.R.N.L.R. 23
2. Sworn evidence of Children - See Akpan vs The state (1967) NMLR 185
3. Matrimonial Causes See Sowande vs Sowande (1960) L.L.R. 58
4. Evidence of Agent Provocateur:
5. Identification.
documentary Evidence
According to section 258 of the evidence Act; "Document" include books, maps, plans, drawings, photographs, and also includes any matter expressed or described upon any substance by means, intended to be used or which may be used for the purpose of recording that matter"
Conditions govern admissibility of documentary evidence
They are three main Conditions govern admissibility of documentary evidence which are:
1. Is the document pleaded?
2. Is it relevant to the enquiry being tried by the court?
3. Is it admissible in law?
Classification of documents
These are two types of documents under the Evidence Act:
1. Public Documents S. 102(2) and (b) E.A
2. Private documents S.103 E.A
Proof of Execution of Documents
i. Who is the author of tgr document?ii. Is tgr document authentic?
Proof of Contents
Contents of document mat be proved by either primary or secondary evidence. See S. 88 E.A
primary Evidence
Is the document itself. This is usually referred to as the Best Evidence Rule see S. 86(1) and S.86(2-4) E.AIf many duplicates or copies are made of the same document by the same process e.g typing with carbon paper each copy including the copy, is primary evidence of the document.
Secondary Evidence
Include certified copies and photocopies. See sec.87 (a- e) of evidence Act.However a document must be proved by primary evidence. There are exception under S.89 (i) (a-e) of evidence Act, Section 90 (2) (a) of evidence Act provides for the type of secondary evidence admissible. For secondary evidence to be admissible, the foundation must be laid under S.89 E.A
What is a Certified True Copy (CTC)?
For a document to be a certified true copy, it must meet the conditions under which are;
a. That the legal fees have been paid,
b. That itbis a certified copy of the original document,
c. That the certificate has been subscribed and dated showing the official title of the officer, and;
d. Sealed cases in Nigeria which the official is entitled by law to use seal or stamped with official stamp.
It is unnecessary to call the public officer who certified it to tender it. See the case of Anyakora vs Obiakor
Proper Custody and Public Documents
Proper custody is completely irrelevant.
Competence And Compellability
A Competent witness is one considered in law as a fit and proper person to testify. It is a general rule that every person is competent to testify except, according to S 175(1) E.A. "unless the court considers that they are prevented from understanding the questions put to them, or from given rational answers to those questions by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind"Every compellable witness is obviously a competent witness since the court will not compel anyone who is not competent. On the other hand, not every competent witness is compellable. However, there are exceptions to the rule.
Exceptions
(1) Children: According to Sec.2(1) CPA, a child is a person who has not attained 14 years in age. For such a child to testify in any proceeding he must be able to understand the questions put to him and able to provide relevant answers to them. See the case of Okoh vs State (1988) 1 NWLR (pt.69) 177. The combined effect of section 175(1) E.A. us that a child is a competent witness if the child is able to understand the nature and implication of an oath. Certain steps should be taken by the court. S.182(2) E.A
There us still controversy as to the necessity or otherwise of the provision of S.175(1) & S.183(1) of evidence act.
Read the case of Okoye vs state (1972) 12 SC 115
(2) President, Vice President, Governors, Deputy Governors: The President, vice president, state Governors, and their deputies are competent witness under S 175(1) of evidence act., but they are not compellable while they are in office S.308(1)(c) 1999 Constitution of federal Republic of Nigeria. However the protection under S.308(1) does not apply to civil proceedings against that person in his official capacity or to a civil or criminal proceeding where he is a normal party. S.308 (2) of 1999 constitution.
See the case of Rotimi & Ors vs Mcgregor (1974) 9 NSCC 542
(3) Diplomatic Agents And Aliens: under the diplomatic and immunities privileges Act Cap. 99 LFN 1990 foreign envoys, consultars officer and members of their families and staff are accorded immunity from suits and legal processes, and are therefore non compellable witness which make similar provisions for the high commissioners of Commonwealth countries, members of their families and staff and officials of some international organizations. These immunities can be waived by, the persons on whom they are conferred. Section 2, 5 (2) 7(2), 15 of the evidence act
(4) Persons of Weak Intellect: S.175 (1 &2) E.A Included among this category of people are persons of extreme old age, drug addicts, persons of unsound mind and drunks,whether permanent or temporary. It also include deaf and dumb persons.
(5) Parties To Suit: They are competent witnesses both for themselves and the opposing party.
(6) Accused Person: An Accused can be a competent witness for the prosecution and for himself and other accused persons. However, before an accused persons can be called to give evidence for the prosecution against a co-accused person, he must himself have pleaded guilty.
(7) Spouse Of The Accused Person: In a criminal proceeding, the spouse of an accused person is a competent witness for the defense as well as for the prosecution, but only upon the application of that accused person. See Sec.178 &179. In civil action, the spouse of a party to that action is a competent witness for that party as well as the opposing party. These provisions apply to husband and wife of a monogamous marriage only.
(8) Relations Of Parties: They are competent for both parties. However the court must be cautioned as to the weight to be attached to such evidence.
(9) Counsels: Even though counsels are not debarred in a case from given evidence but the rule of etiquette and common sense should guide such action.
Reference:
EVIDENCE ACT 2011: SYNOPTIC GUIDE. (SECOND EDITION) PAGE 105-170
Writing by A.A Zakari
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