EVIDENCE LAW

EVIDENCE LAW

1

LAW OF EVIDENCE I

  1. General introduction
  2. Sources of Nigerian Law of Evidence
  3. Direct and Circumstantial Evidence
  4. Facts in issue and relevant facts
  5. Relevancy and Admissibility
  6. Presumptions
  7. Institution of Criminal Proceedings in Nigeria
  8. Admissions and Confessions
  9. Hearsay Evidence; Res Gestae
  10. Similar Facts Evidence
  11. Character Evidence

LAW OF EVIDENCE II

  1. Opinion Evidence
  2. Documentary Evidence
  3. Estoppels
  4. Privilege
  5. Corroboration
  6. Burden of Proof
  7. Competence and Compellability of witness

INTRODUCTION

DEFINITION OF EVIDENCE

The word “Evidence” has been a subject of definition and description  by several  authors and for a proper understanding, some of these are hereby examined. Phipson defines evidence as the testimony of witnesses (oral and documentary); and the production of documents and things which may be legally received to prove or disprove some facts. On his own part, Cross sees evidence as the testimony, hearsay, document, things and facts which a court will accept as evidence in a given case. Nokes posits that evidence constitutes facts that are legally admissible, and the legal means of proving such facts. Prominent Nigerian jurist, Aguda, suggests that Evidence is the means by which  facts  are proved  but excluding inferences and arguments.

All these definitions have however been proved to be inadequate, despite the utilities  in their different regards. It is the fact of the inadequacy of each of the definitions that some of them have been subjected to one criticism or the other and these shall be examined herein accordingly. For instance, look at Phipson’s definition; and the use of the conjunction “and”. The truth is that the court may be satisfied by oral or documentary or real evidence or by a combination of any of them or all of them together. Also, Phipson’s definition is restricted to oral, documentary and real evidence. What about “presumption”. A “presumption” is a conclusion which may or must be drawn until the contrary is proved. Presumption is part of evidence in law and in fact  as we shall  see  later. Cross’ definition is criticized on the point that it limits evidence only to admissible evidence, but both admissible and inadmissible evidence form part of evidence. Inadmissible evidence, for instance, could be the basis or ground of appeal in a case. Hence, the definition is restrictive. Nokes’ definition does not take into account illegally obtained evidence. Whereas, section 14 and 15 of the Evidence Act proves that what the court is interested in is the relevance of the evidence and not the means by which the evidence is obtained.

Thus, from the above assertions, an acceptable definition of evidence can therefore be summed up to be something or that which is required to prove or disprove an issue of fact.

It is also noteworthy that the definition of the concept “Evidence” has been judicially ascertained by the Supreme Court in the case of Akintola and Another v. Solano [1986] 4

S.C. 141 at 184. In that case, Oputa JSC stated as follows:

If a thing is self-evident, it does not require evidence. What therefore is evidence? Simply put, it is the means by which any matter of fact the truth of which is submitted to investigation may be established or disproved.  Evidence is therefore necessary to prove or disprove an issue of fact.

FACT, FACT IN ISSUE, RELEVANCE AND ADMISSIBILITY

Black’s Law Dictionary defines fact to be a thing done; an action performed or an incident transpiring; an event or circumstance; an actual occurrence; an actual happening in time space or an event mental or physical; that which has taken place. The Evidence Act 2011 under Section 258 (1) paragraph 9 defines Fact to include-

  1. Anything, state of things, or relation of things capable of being perceived by the senses; and
  2. Any mental condition of which any person is conscious;

 

Prominent Jurist, W.M. Best has given us a clearer picture of what ‘’fact’’ is by his breaking down of facts into classes and this shall be fully considered because of the importance to our line of study. Best subdivides fact into three types and these include:

  1. Physical or psychological facts
  2. Events or state of things
  3. Positive/affirmative and negative facts
  4. Physical or Psychological Facts: Physical facts are those that are visible to the eye whether animate or inanimate being while Psychological facts are those which are embedded only in animate being, such as the one that exist in the mind of an individual. Such includes the appeal to the senses, the ability to feel, recollect and be conscious of happenings. This classification is in line with the definition of fact as

given in the second leg of the definition of the Evidence Act 2011 which talks about the mental condition of witnesses (section 258).

  1. Event or State of Things: This is the occurrence of events or happenings, it has been said that this is called ‘’an act’’ or ‘’an action’’. The concept of Event infers the happening or incidence around a thing while State of things infers to the actual existence of that thing. This classification has been well illustrated by W. M. Best himself. The illustration describes the difference between Event and State of Things using ‘’A Tree”. His analogy is based on the existence of a tree and the falling of that tree. He said the existence of a tree is ‘’A State of Things’’ while the falling of the tree is ‘’Event”.
  2. Positive/Affirmative And Negative Facts: This class has been explained by W.M. Best who said the existence of certain state of things is a positive or affirmative fact while its non-existence is a negative

Concepts of Fact under the Evidence Act

 

It is noteworthy that under the Evidence Act, four concepts relating to facts are noted and these are: Facts in Issue, Proved facts, Disproved Facts and facts not proved. All these are hereby examined as follows:

  1. Fact-in-Issue: These are all the facts which the plaintiff/claimant or prosecution and the Defendant or accused must prove to succeed in his or her claim or defence. It is only on the fact-in-issue or facts relevant fact-in-issue that the court ought to make pronouncement. The plaintiff in civil cause is expected to substantiate or prove the fact -in-issue in order to succeed except in situations where the defendants has admitted such facts. Also in criminal cases, what the prosecution must establish in order to secure a conviction must be fact-in-issue. In whichever situation it applies, such facts must be proved beyond reasonable doubt. Facts-in-issue are those facts been contended and contested by the two parties to an action. A full definition of the facts-in-issue has been given by the interpretation section of the Evidence Act 2011, precisely Section 258 paragraph 10 where it states as follows:

‘’Fact in issue’’ includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows.

According to the Black’s Law Dictionary, Facts in issue are defined as those matters of fact on which the plaintiff proceeds by his action, and which the defendant controverts in his defense. Thus by the above assertions, it is necessary to establish that what makes facts to be in issue is the contention attached to it. So if the facts are not being contended, it will not qualify as facts in issue.

What constitutes facts in issue has been judicially determined in the case of Olufosoye v. Olorunfemi (1989) 1 NWLR (Pt 95) pg 26, where the Supreme Court of Nigeria held that an admitted fact is not in issue. It is only when facts are in dispute that they are said to be in issue.

It is worthy of note that facts admitted has been decided to be contained in the pleadings of the parties particularly in civil proceedings.. See the case of Elimare v Ehonyo (1985) 1 NWLR pt 2 at pg 177, here the conclusion of the court was to the extent that admitted facts are usually contained in the pleadings of the party in the civil proceedings. Therefore facts admitted are not in issue as the content is cleared and acceptable to all parties.

In the case of Agbi v. Ogbeh, it was stated that a fact directly in issue means a fact which the plaintiff must prove to satisfy his claim. In Osulu v. Osulu, the court reasoned that the fact in issue in a civil proceeding is the fact affirmed by one party and denied by the other. This reasoning was also followed in Onafowakan v. Wema Bank Plc, where the court opined that fact in issue is the question in dispute between both parties. See also Oceanic Bank v. C55 Ltd.; Nwarata v. Egboke. From the above authorities, what is very clear is that the fact in issue is determined by the substantive law, and in the case of civil proceedings, it can be distilled from the pleadings; while in criminal proceedings, it can be distilled from the charge.

  1. Proved Facts: This is enshrined under Section 121(a) of the Evidence Act 2011 which provides as follows: A Fact is said to be- “proved” when, after considering the matters before it, the court either believe it to exist or considers its existence so probable that a prudent man ought. in the circumstances of the particular case. to act upon the supposition that it does exist:

 

  1. Disproved Facts: As provided for by the Section 121(b) of the Evidence Act 2011, A Fact is said to be- “disproved’ when, after considering the matters before it, the court either that it does not exist or considers its non-existence so probable that

 

prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist;

  1. Facts not proved: This is provided under the Section 121(c) of the Evidence Act 2011, it says A fact is said to be- “not proved” when it is neither proved nor

 

GENERAL CLASSIFICATION OF EVIDENCE

Writers like Gross and Williams, Nwadialo, Nweze, Adah and others have given several classification and types of evidence and these are examined briefly in this unit.

According to Gross and Williams Evidence can be classified into: Direct and circumstantial evidence, Primary and Secondary evidence and Insufficient, Prima Facie and Conclusive. Nwadialo on his own part classified Evidence into: Direct and Circumstantial Evidence, Direct and hearsay Evidence, Oral and Documentary, Real Evidence and Primary and Secondary Evidence. We will now be examining these classifications.

 

  1. Oral Evidence: This is the testimony given in person by a witness before a law court. It is the presentation of evidence by word of mouth while testifying in the witness box. The witness is normally put on oath or allowed to affirm based on his/her religious belief before proceeding to give evidence. Oral evidence of facts is expected to be given in a trial. See Section 125 of the Evidence Act 2011 provides that ‘’All facts, except the contents of documents, may be proved by oral evidence’’.

Nevertheless it is noteworthy that the meaning of oral evidence has been expanded by the Evidence Act by virtue of its provision for written evidence for those witnesses with speech challenges. This therefore qualifies the literal meaning of oral evidence as the evidence given by such with speech disability is deemed to be oral evidence by the Act. Section 176 (1) and (2) provides as follows:

  1. A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs: but such writing must be written and the signs made ill open
  2. Evidence so given shall be deemed to be oral evidence

 

Oral evidence in a proceeding is very important to the court because it allows the court to take certain facts surrounding the witness composure at trial into consideration in forming its opinion about the authenticity and truthfulness of the evidence being given by the witness. During the different stages of examination of witness, i.e. Examination in Chief, Cross Examination and Re-Examination, the testimony of the witness is being vividly observed in other to determine the accuracy of the evidence been given by the witness.

  1. Documentary Evidence: This kind of evidence deals with the production of documents in a judicial proceeding for the purpose of proving its content. According to Hon. Justice P.A. Onamade, Documentary evidence is of tremendous importance in court proceeding. To him, Documentary Evidence forms part of the entire gamut of the Law of Evidence. It is the yardstick by which the veracity of oral testimony is tested. The importance of documentary evidence is well enunciated in the dictum of Lord Mcnaghten when he asserted in Hennessy v. Keating (1908) 421 L.T.R. 169 that the eye is no doubt the best test. This therefore implies that what the eyes of the court see via documents tendered in trial helps the formation of better opinion on the matter.

Documentary evidence simply put will qualify for the usage of documents in giving evidence in a proceeding. The kinds of documents which are regarded under the law are provided for under Section 258(1) of the Evidence Act 2011. The Paragraphs 8 of that section defines the word ‘’documents’’ which is said to include;

books., maps, plans, graphs., drawings, photographs, and also includes 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;

  • any disc. tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it, and
  • any film, negative, tape or other device in which one or more visual Images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and
  • any device by means of which information is recorded., stored or retrievable including computer output:

It is settled law that documentary evidence is a veritable aid for assessing oral testimony. The tendering of Evidence is believed to have a very important purpose but not just for fun and this has been established in the Supreme Court case of Salawu Ajide v. Kadiri Kelani (1985) 3 NWLR part 12, 248 at 270 here Oputa JSC held as follows:

… every document tendered by a party to a case must be tendered  with some end in view. The document may be tendered to advance and further strengthen the case of the party who tendered it or adversely to weaken or destroy the case of his adversary.

  1. Electronic Evidence: This kind of evidence deals with the tendering of the output of electronic gadgets or equipment as evidence in court. Particularly Section 84 of the Evidence Act 2011 provides for the acceptability and admissibility of statements generated from computers as evidence in the law court. The Section 84 (1) and (2) of the Evidence Act 2011 provides as follows:

(]) 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.

  • The conditions referred to in subsection (l ) of this section are
    • 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;
    • 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;

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

  • that the information contained in the statement reproduces 01′ is derived from information supplied to the computer in the ordinary course of those

 

 

 

The Evidence Act 2011 officially provides for the recognition of recording machines, computers and the likes as one of the means by which evidence can be given in a judicial proceeding. Data and sound track of a recording gadgets and output of a computer are regarded as evidence by the Act. See Section 258(1) paragraph 8 (b)-(d), it provides as follows:

  • any disc. tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it, and
  • any film, negative, tape or other device in which one or more visual Images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and
  • any device by means of which information is recorded., stored or retrievable including computer output:

 

 

  1. Direct Evidence

Direct evidence is a statement of personal knowledge or observations, which tends  to prove a fact without inference or presumption. The word “direct” relates to the source of knowledge being disposed to. Direct evidence is the testimony  of  a  witness  who perceived the fact in dispute with one of his/her own senses, or the production of the document which constitutes the fact.

 

Your evidence is ‘direct’ if it is a testimony of a fact which you perceive with one of your senses such as hearing, sight, smell, touch or taste. That is to say it is the testimony  as to the perception of a fact in issue. See Section 126, Evidence Act 2011. It provides as follows:

 

  1. Subject to the provisions of Part Ill, oral evidence shall. in all cases whatever. be direct If it refers to –
  2. a) a fact which could be seen, it must be the evidence of a witness who says he saw that fact:
  • to a fact which could be heard, it must be the evidence of a witness who says he heard that fact:
  • to a fact which could be perceived by any other sense or in any other manner. It must be the evidence of a witness who says he perceived that fact by that sense or  in that manner;
  • if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

 

Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable.

 

Examples of Direct Evidence:

  • production in cost of the material thing eg weapon of offence, article
  • inspection of the Locus in quo – the place where subject matter is located
  • evidence of the fact in issue itself e.g. the evidence of an eye-witness.
  • evidence of a witness speaking for his/her personal knowledge of a fact, the existence by which is required to be

An example of direct evidence occurs in a situation where a testimony in a trial is given by a person who was personally present, witnessed and probably experienced some of the event at the incident and is personally given such testimony.

The problem with direct evidence is that it is seldom available and there may be no witness(es) in  most  cases  when  crime  is  committed.   Where   direct   testimony    of  eye witnesses is not available, the court is permitted to infer from the facts proved, the existence of other facts that may be logically inferred. Where it is available, direct  evidence is the best evidence. See the cases of Ahmed v. State, Idiok v. State

 

  1. Circumstantial Evidence

Circumstantial evidence is an indirect evidence. This is the evidence other than a direct evidence. When the evidence available does not consist of the fact in issue  but  of evidential facts, such evidence is circumstantial. It  is  neither  evidence  of  the  fact  in  issue nor a detailed account of what happened. It is evidence of a number of  items  pointing to the same direction. This is the evidence  of  other  facts  from  which   the   fact in dispute can  be  inferred,  either  directly  or indirectly with more or less certainty. It is also described as presumptive or indirect evidence. Examples of Circumstantial Evidence are:

  • finger-prints at the scene of crime or on the item used for a crime leading to the presumption that the person who made the prints was either present at the scene or handled the said item or instrument used at the scene of the
  • possession of a murder weapons or of stolen, goods

 

A legal writer Pellock noted that circumstantial evidence is to be considered as a chain and each pieces of evidence as a link in the chain, but that is not so, for then, if any one link breaks, the chin would fall.

It is more like the case of rope comprises  of several cords.  One strand of the cord might   be insignificant to sustain the weight but three stranded together may be quite  of  sufficient strength.

Thus, it may be in circumstantial evidence,  there  may  be  a  combination  of circumstances, no one of which would raise a reasonable conviction or more than a mere suspicion, but there (no more) taken largely may create a conclusion of guilt with as much certainty as human appears can require or admit of”.

Nwadialo stated that in order to support or sustain a conviction, circumstantial evidence must include the following:

  1. be cogent and compelling
  2. point irresistibly to the accused and to no other else as one culprit
  3. be incompatible with the innocence of the accused
  4. be incapable of explanation on the basis of other reasonable hypothesis than one of guilt.

An example of circumstantial evidence in a civil matter can occur in an allegation  of adultery it may be difficult to obtain a direct evidence, but there is a possibility of getting circumstantial evidence which may include:

  • Proof of existence of familiarity
  • Opportunity
  • Birth Registration of a child of a woman other than that of the woman’s husband
  • Birth of a child after a long absence of the woman’s husband
  • Visit to brothel
  • Infection with a venereal disease
  • Confirmation by Blood test

 

But it is worthy of note that Circumstantial evidence may be subject to certain limitations which might not make it reliable. Such limitation includes:

  1. There is a possibility that the witness may be telling a lie
  2. The witness may be mistaking
  3. The inference may be erroneous in the particular

In Attah v. State, the court used circumstantial evidence to convict the accused of manslaughter. In this case, a lady was brought to the accused for abortion , but later her body was no seen again. Similarly, in Archie v. State, a man killed a person and dumped him in the river on their way from the East, claiming that their car fell into the river and he managed to escape. Circumstantial evidence was used to convict him of murder.

  1. Real Evidence: This kind of evidence has been described to be objective or demonstrative evidence derived by the court from the inspection of physical objects other than documents which could be a place, a person, animal or thing. It always occurs when there is a reference to it by oral evidence in a court’s proceeding. What qualifies as Real Evidence has been set out in Section 127 (1) and
  • as follows:

(1) If oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it deems fit

  • require the production of such material thing for its inspection. or
  • inspect an)’ moveable or immovable property the inspection of which may be material to the proper determination of the question in dispute.
  • When an inspection of property under this section is required to be held at a place outside the courtroom, the court shall either-
    • be adjourned to the place where the subject-matter of the said inspection may be and the proceeding shall continue at that place until the court further adjourns back to its original place of sitting, or to some other place of sitting; or
    • attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in court afterwards, and if) either case the defendant if any, shall be present.

An example of the presentation of real evidence before the court is the case of Lyon v. Taylor (1862) 3 F & F., 731. In this case the court ordered the production of a  fierce and mischievous dog in court for the purpose of examination.

  1. Hearsay Evidence: Hearsay evidences are the evidence given which project the claim of another person apart from the person testifying in court. That is to say that the person given the testimony did not personally witness the incidence been testified about but such are given or made available to him/her from someone else who claims the knowledge of such fact. See Section 37-38 of the Evidence Act 2011.

 

Hearsay has been identified to be of two kinds and these include; Hearsay in the technical sense and Hearsay in the non-technical sense. Hearsay in the technical sense occurs when an assertion is made as evidence of the truth alleged and such will be inadmissible except it comes under the recognised exceptions. On the other hand, Hearsay in the non-technical sense happens when a witness is required to present before the court another person’s statement for some other purpose different from using it to convince the court to accept such statement as the truth.

According to Adah, such situations occur in the case of sedition, where a witness is allowed to repeat the seditious statement for the purpose of accepting same as having been made but not for the purpose of establishing its truthfulness.

 

Subject to the provisions of the Evidence Act 2011, admissible evidence will be one that is direct and not hearsay. See Section 126 (a-d) of the Act. This  section  provides for the rule against hearsay and the basis for this rule includes:

 

  1. The unreliability of the original maker of the statement who is not in court and not cross-examined
  2. The depreciation of the truth arising from repetition
  3. Opportunities for fraud
  4. The tendency of such evidence to lead to prolonged inquiries and proceedings
  5. The admission of hearsay evidence tends to encourage the substitution of weaker for stronger evidence

 

The above notwithstanding, there are circumstances in which hearsay will be deemed admissible and such situations include the following:

  1. Dying declarations. See Section 39 (a) Evidence Act 2011
  2. Evidence of traditional or communal history of land. See Section 43 of the Evidence Act 2011
  • Admissibility of documents under Section 83 of the Evidence Act 2011
  1. Admissions under Section 20 of the Evidence Act 2011
  2. Confession under Section 28 of the Evidence Act 2011
  3. Affidavit evidence under Section 108 of the Evidence Act 2011
  • Res Gestae under Section 4 of the Evidence Act 2011
  • Expert Opinion under Sections 68-71 of the Evidence Act See the case of

Kate Enterprises Ltd. V Daewoo Nig. Ltd (1985)7 S.C. 1

  1. Evidence admitted on the principle of corporate personality

 

  1. Primary Evidence

The meaning of the concept ‘’Primary Evidence’’ has been set in in Section 86 of the Evidence Act 2011. It provides as follows:

  1. Primary evidence means the document itself produced for the inspection of the
  2. Where a document has been executed in several parts, each part shall be primary evidence of the
  3. Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the parties executing
  4. Where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the contents of the rest; but where they are all copies of a common original, they shall not be primary evidence of the contents of the

The word ‘primary’ derives from the latin word “Primo” meaning ‘first’ – original. Primary evidence  means  the  productions  in  court  of  the  original   document   itself   that contains the facts to be proved or for inspection of the court. Thus an original document or thing for instance, is the primary evidence itself. Primary Evidence includes:

  1. Production of original document or thing as  evidence  of  itself  or  its    The real document itself produced for inspection is a primary evidence. This  includes a duplicate original document when it seeks to acquaint the court with the contents.
  2. A number of documents made by a single act by use of carbon papers, for this purpose, is original. Consequently,  documents  forming  part  of  a number  made by one uniform process, for example by photography, lithography or printing, not being mere common copies of the original are original and primary. So also each  part of a document executed in several parts or the counterpart of a document
  • Evidence, which does not by its nature suggest  the  existence  of  a  better evidence. This is evidence of highest quality available, as measured by the nature of the case rather than the thing being offered as evidence. Be that as it may, the  court, today accepts any relevant evidence whether or not there is a better  evidence

Take note that Primary evidence is also termed ‘Best Evidence’ which requires the production in court of the best evidence of which  the nature of  the case would  permit. The best evidence rule excludes, the testimony concerning the condition of a thing unless the thing itself can be produced and Circumstantial evidence if a direct evidence  is available.

  1. Secondary Evidence: This is found in Section 87 of the Evidence Act 2011

Generally, documents  must  be  proved  by  the  primary  evidence  (section  86).  However, secondary evidence may be permitted in the following circumstances (section 87):

  • When the original is in the possession of the adverse party or other: When the original is shown to or appears to be in the possession or power
    • of the person against whom the document is sought to be proved
    • of any person legally bound to produce it, and when, after  the  notice  to produce it, such person does not produce

In such a case, the court may receive a secondary evidence of the content of the document.

The notice to produce the original document may be served on the party in whose possession or power the document is. You may also give it to a legal  practitioner  employed by such party. The notice must be  such  as  is  prescribed  by  law  or  such notice as the court considers reasonable in the circumstance of the case.

You need to note that there are cases when the  court  may  dispense  with  notice  (Section 91 Evidence Act 2011). On the  other  words,  a  secondary  evidence  may  be given in  certain  case  without  the requirement of notice.  The Court, without notice to  the adverse person or person in possession of an original document permits a secondary evidence in the following cases:

  1. When the document to be proved is itself a notice
  2. When from the nature of the case the adverse party must know that he will be required to produce it
  3. When it appears or is proved  that  the  adverse  party  has  obtained  possession of the original by fraud or force
  4. When the adverse party or his agent has the original in court
  5. When the adverse or his agent has admitted the loss of the document

 

The Court may also dispense with the notice in any other case in which it thinks fit to do so. Other circumstances, in which the court would admit secondary evidence

include the following:

When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest (Here, the written admission is admissible).

 

  1. When the original has been destroyed or lost and in the latter case all possible search has been made for it. (where this is the case, you are permitted to give a secondary evidence of the contents of the document).
  2. When the original is of such a nature as not to be easily
  3. When the original is a public document within the meaning of Section 101 of the Evidence Act, 2011. Here also, any secondary evidence of the contents of the document is
  4. When the original is a document of which a certified copy is permitted by  the Evidence Act or by any other law in force in Nigeria to be given. (Here, the court may admit a certified copy of the documents, it may require any other kind of secondary evidence)
  5. When the original consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole

In these circumstances, also a certified copy of the document, but no other kind of secondary evidence is admissible. Evidence may also be given  as  to  the  general  result of the documents by any  person,  who  has  examined  them,  and  who  is  skilled in the examination of such documents.

  1. When the document is an entry in a banker’s

 

In all other cases, documents must be proved by primary evidence – that is to say, by producing the original document. If a document is in the possession of the prosecution or plaintiff (Complainant) who wishes to prove he or she must  make the document  available in the court and accessible to the other party.  On  the  other  hand if the  document  is in the hand of the opposite party; The document must be disclosed to the other party

If it has not been so discovered, the party wishing to prove it  shall  give  the  adversary party notice to produce it.

For purpose of clarity, secondary evidence includes:

 

  1. Certified copies given under the provision of the Evidence Act
  2. Copies made from the original by mechanical processes, which in themselves ensure the accuracy of the copy and copies compared with such
  3. Copies made from or compared with the original
  4. Counterparts of documents as against the parties who did not execute them
  5. Oral accounts of the contents of a document given by some person who has himself seen

Proof of Document (Proof of Execution of Documents is provided for under Section 93 -101. The Contents of a document may be proved by any of the following persons:

  • the maker or author of the document
  • the executor of or signatory to the document
  • the person who signed the document as a witness
  • a person who can identify the signature on the document or attesting witness
  • the person who has lawful custody or content of the document
  • the person who procures the certified time copy of a public

A little more evidence is required where the document is private. In such a case, the following is required also to be proved:

  • that the person who claims to be the maker or author is in fact the maker or author
  • that the signature or handwriting on the document belongs to the person claiming

The Evidence Act lays down how to prove the identify of a person or an handwriting  as  you shall see later. But  note  that  any  statement  made  by  a  person  interested  at  a time when a proceeding is pending or anticipated involving  a dispute  or any fact which  the statement may tend to establish is not admissible as evidence.

Facts Relevant to the Fact in Issue(Relevancy of Facts)

 

While it is true that in some cases the fact in issue may be proved by direct evidence. In a majority  of cases, it  is a matter of inference to be drawn by the judges either as a matter of law  or as a matter of fact. In such a circumstance, the witness tends to refer to other incidents or facts or claims of facts as evidence amounting to the main fact.  All  these  other  facts are referred to as facts relevant to the fact in issue. A fact relevant to the fact in issue is that fact (other than the fact in issue), showing the probability of the fact in issue. On the issue of relevancy, note that:

 

  1. All relevant evidence is prima facie, admissible unless excluded by law
  2. No irrelevant evidence is ever admissible except only in exceptional  cases
  3. Evidence which  tends  to  exonerate  an  accused  may   always   be  given and admissible

 

The Evidence Act 2011 describes facts which are relevant as follows:

  1. Facts Connected to Fact in Issue:- Section 4 of the Evidence Act 2011 provides

Facts which, though not in issue, are so connected with a fact in issue as to form part or the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

  1. Facts which occasion, cause or effect Fact in Issue:- Section 5 of the Evidence Act 2011 provides

Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.

 

  1. Facts which shows motive, preparation and conduct of Fact in Issue:- Section 6 of the Evidence Act 2011 provides

 

  • Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant

(2) The conduct, whether previous or subsequent to any proceeding

 

  1. Facts necessary to explain or introduce Relevant Fact :- Section 7 of the Evidence Act 2011 provides

Facts

  • necessary to explain or introduce a fact in issue or relevant fact;
  • which support or rebut an inference suggested by a fact in issue or relevant fact;
  • which establish the identity of anything 01″ person whose identity is relevant:
  • which fix the time or place at which any fact in issue or relevant fact happened: or
  • which show the relation of parties by whom any such fact was transacted. Arc relevant in so far as they are necessary for that purpose.

 

  1. Act of conspiracy:- Section 8 of the Evidence Act 2011 provides

(1) Where there is reasonable ground to believe that two or more persons  have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in execution or furtherance of their common intention, after the time when such intention was first entertained by one of them, is a relevant fact as against each of the persons believed to be so conspiring, for the purpose of proving the existence of the conspiracy as well as [or the purpose of showing that any such person was a party to it.

  1. Facts not otherwise relevant. Section 9 Evidence Act 2011 provides as follows:

Facts not otherwise relevant are relevant if –

  • they are inconsistent with any fact in issue or relevant fact; and
  • by themselves or in connection with other facts they make the existence or nonexistence of any fact in issue or relevant fact probable or

 

  1. Facts relevant in proceedings for damages. Section 10 Evidence Act, 2011 provides as follows:

In proceedings in which damages are claimed, any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant.

 

  1. Facts showing existence of state of mind, body and feeling. Section 11 Evidence Act 2011 provides as follows:
  • Facts showing the existence –
    • any state of mind such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person: or

 

  • any state of body or bodily feeling are relevant when the existence of any such state of mind or body or bodily feeling is in issue or

 

(“2) A fact relevant as showing the existence of a relevant state of mind

 

must show that the state of mind exists, not generally, but in reference to the particular matter in question.

 

  1. Facts bothering on question of accidental or intentional acts. Section 12 Evidence Act, 2011 provides as follows:

When 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.

  1. Existence of Course or Business. Section 13 Evidence Act 2011 provides as follows:- When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant

Motive and Preparation (Section 6 Evidence Act 2011)

 

Evidence is relevant which shows or constitutes motive or preparation for  any  fact  in issue or relevant fact. Similarly the evidence is relevant which  tends  to  show  the  conduct of any party or of any agent to any party to any proceeding in reference to such suit or proceeding or in reference to any fact in issue therein or relevant thereto and the conduct of any person, an offence against  whom  is  the  subject  of  any  proceeding,  if the  conduct  influences  or  is influenced  by  the  fact  in  issue  or  relevant  facts.   It  is not material whether the conduct is preannounced or subsequent.

In Oguntola v. State, it was held that motive is the reason for an act or omission

Note the meaning of the word “conduct” in this context. The word conduct does  not include  any  statement   simpliciter   unless   the   statement accompanies and  explains acts other than statements.(section 6(3) of EA).  When  the  conduct  of  any  person  is  relevant,  any statement made to him or in his  presence  and  hearings  which  affects  such conduct is also relevant. See the cases of Jimoh Ishola v. State, and Iyaro v. The State;

 

 

Facts necessary to explain or introduce relevant facts (Sec. 7 Evidence Act 2011) This section permits the reception of the following facts:

 

  • Facts that are introductory
  • Fact that establish identity of a party or person whose identity is necessary
  • Fact that support an inference
  • Facts in rebuttal of an inference
  • Fact which fixes the time or place at which the fact in issue or relevant fact happened
  • Fact which shows the relation of parties by whom such fact was transacted.

 

 

Illustration

Agu is charged with culpable homicide punishable with death for alleged killing  of  Winifred. Dr Chime testifies as to the cause of death. The following items of evidence may be admissible:

  • Questions as to Dr. Chime’s qualifications and experience
  • To introduce the fact that Dr. Chime is an expert
  • The fact that Agu left Koko Town few minutes after shooting
  • To support an inference that Agu might have been implicated in the crime

 

  • Unrefuted evidence of Agu that he left Koko unexpectedly because his mother was at point of death and he had to be at her side is admissible to rebut the inference that he absconded after killing Winifred
  • To rebut the inference he absconded after killing
  • Evidence that Agu wore the same dress, carried the same gun as that of the alleged esculent

– to show identity.

  • The fact fixing the time and place at which the relevant fact

Section 7 Evidence Act 2011 is innovative and its aim is to let an introductory or explanatory note to corroborate a relevant fact. It is not to prove any fact in issue. But in practice, however, it may weigh just as heavily as facts designed to prove the fact in issue or relevant fact.

 

Things said, done, or written  by  a conspirator  (Section 8, Evidence Act 2011) where there is a reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in execution or furtherance of their common intention after the time when such intention was first entertained by anyone of them is a relevant fact as

against each of them believed to be so conspiring as will for the purpose of proving the existence of the conspiracy as for the purpose  of  showing  that any such person was a  party to it. This was the rationale elucidated in the case of  Osho v. State.

 

But statement made by individual conspirators as to measures taken in the execution or furtherance of any such common intention are not deemed to be relevant as such  as against any conspirators except those by whom or in whose presence such statements are made. This was the rationale of the court in Emeka v. State

 

In this context, evidence of acts or statements deemed to be relevant  may  only  be received after the court is satisfied, prima facie, that evidence of conspiracy already exists.

 

Look at the case of Police v Balogun (1953), A, B and C were charged with conspiracy to  steal some bags of cement. B and C made statements to the Police implicating A and in A’s absence. There was other evidence that A was a party to the conspiracy.

 

 

Held:

 

  • The statements made by B and C in  A’s  absence  was  not  admissible  against  A but against B and
  • The other acts or things done by B and C are admissible against all three if they were done in furtherance of their common

 

 

 

This is a confirmation that a fact is relevant if it is a thing said or done or written by way of the conspirators’ execution or furtherance of a common intention.

 

  • A fact, which is not otherwise relevant may be relevant:- Section 9, Evidence Act, 2011. Facts, not otherwise relevant are relevant if:

 

  • It is inconsistent with any fact in issue or relevant fact
  • It is by itself or in connection with others facts, it makes the existence or non- existence of any fact in issue or relevant fact probable or improbable

In Anagbado v. Anagbado, a husband petitioned seeking to divorce his wife on the grounds of cruelty ( he claimed that she refused to have sex with him. Evidence of the wife that between 1974 to 1980, they had 6 children and had continued intercourse after filing petition, was relevant to prove that the fact in issue was inconsistent. Similarly, in Akingbade v. Elemosho, in order to prove title to land, evidence of the plaintiff, of deeds of conveyance executed by the vendors to other persons for the surrounding lands was relevant to prove common vendors. Also see Chieke v. Olusoga.

Other circumstances when a fact, not otherwise relevant becomes relevant (Section 10 Evidence Act 2011). Where the fact will enable the court to determine the amount of damages, which it ought to award in a proceeding in which damages are claimed, such evidence will become relevant.

Fact showing existence of state of mind (section 11 Evidence Act 2011).

Evidence showing the existence of a state of mind or of the body or bodily feelings is relevant. Examples are facts tending to show an intention, knowledge, good faith (or bad fault), negligence, rashness, ill-will or good will towards any particular person.

 

To be relevant, the existence of any such states, mind, body, or bodily feeling must either be in issue or relevant

 

Furthermore, the fact must show that the state of mind exists not generally but in reference to the particular matter in question.

 

What is “state of mind”?

State of mind probably refers to one’s mental process and this can be  of  various shapes depicting: intention, knowledge, good faith, bad faith, ill-will, good will, rashness or negligence. See the case of Awaye Motors v. Adewunmi, Mohammed v. State.

 

RES GESTAE

A fact includes anything, state of things, or relation of things, capable  of being perceived of the senses, and mental condition of which any person is conscious. A fact may also be the result of one or more facts. It  may  consist  of  a  series  of  facts  (as  in  a  transaction), part of a the transaction accompany and explain  it (accompanying  facts).  Res gesta refers to the central transaction whilst the constituent or accompany facts are parts of it – other acts, omissions, incidents and declarations which accompany, constitute or explain a fact in issue.

Meaning of ‘ ’ Res Gestae’’

This word, Res Gesta (singular) or res geatae (plural) is Latin expression meaning “thing done” or ‘’event which occurred’’. According to the Blacks’ Law  Dictionary, the Res Gestae rule is that where a remark is made spontaneously and concurrently with an affray, collision or the like, it carries with it  inherently  a  degree of credibility and will be admissible because of its spontaneous nature.

Where a transaction or an event is in issue, all those facts which comprise the transaction that accompany and explain it are known as res gestae and they are generally acceptable.

The term therefore refers to:

– Relevant fact or events in issue

  • Events contemporaneous with the events at
  • Facts which accompany and explain facts in issue

The essence of this principle of law has been well explained in the case of Holmes v Newman (1931) 2 Ch. 112. Here Lord Tomlin described res gestae as ‘’a phrase adopted to provide a respectable cloak for a variety of cause to which no formula of precision can be applied’’.

The Evidence Law permits the court to admit words and statements  about  res  gestae. This res gestae embraces not only the actual facts of the transaction and  the circumstances surrounding it but also the matters immediately  antecedent  to and having a direct causal connection with it; as well as acts immediately following it and so closely connected with it as to form in reality a part of the occurrence.

In a criminal proceeding, all acts done by the accused or by any person in his presence or acting under his directions and all statements, oral or written , made by him or by a  person in his presence at the time of the transaction  or before  or after it,  will be  relevant if they can be shown to be  connected with the specific transaction with which  the accused is charged. .

The Evidence Act did not use the term ‘res gesta or res gestae’. But see section 7: Relevancy of facts forming part of same transaction:

Facts which though not  in issue,  are so connected  with  a fact  in issue  as  to form  part of the same transaction, are relevant, whether they occurred  at  the  same  time  and place or at different times and places.

 

Criteria for admitting res gestae in Evidence

Ordinarily  res gestae is a hearsay  and prima facie irrelevant  and inadmissible.  However   as an exception to hearsay rule, the things said, written or done which accompany and explain a relevant act – res gestae – is relevant and admissible.

See the case of Sule Salawu v. State (1971) 1 NMLR 249. In this case, several people heard at one night the voice of the deceased crying ‘’Sule is killing me’’. The witness rushed into the room and found the deceased in the pool of her own blood. The court [WACA] held  that the as expressed by the deceased is admissible as res gestae.

Before ‘’res gestae’’  can  be  admitted  there are certain criteria it must meet and  these  a r e set out as follows:

  1. Statement must be substantially contemporaneous with the facts in issue. This is to exclude the possibility of its having being concocted to the maker’s
  2. Statement must explain the facts in issue or be directly connected with it and it must not be prior or subsequent disconnected
  3. The declaration and the act must be made by the same person. In other words, where declaration was made by one person and the accompany act performed by another, such declaration would generally not be

 

These three criteria are very important and material in establishing the principle of ‘’Res Gestae’’ under the law of evidence and these shall be examined fully as follows:

 

It must be Contemporaneous: This principle was enunciated in the expression of Lord Normad in the case of Teper v R. [1952] A C 480 at 487. Here the learned Judge declared as follows:

 

“It is  essential  that  the  words  sought  to  be  proved  by  hearsay  should  be;  if not absolutely contemporaneous with the action or event, at least so clearly associated with it in time, place and circumstances that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement.”

 

The implication of this expression as above stated from the Judicial Committee of the Privy Council is to the extent that before the words on an event or transaction can be held admissible in a trial, it must be closely kneaded with the event particularly as regards the timing, the place and the circumstance of such transaction on trial.

An example of contemporaneous evidence is the one in the case of R v. Bedinfield (1879) 14 Cox C.C. 341. In this case the accused was charged with the murder of a woman. The woman rushed out of a house with a cut throat where she and the accused had been together and exclaimed: ‘’Oh, aunt, see what Harry has done to me!”. This statement was held inadmissible as it was something stated by her after the event was over. Had the statement been uttered by her as at the time of the event, it would have been held admissible.

 

A similar occurrence like that of the above case is that of the case of R v. Bang Weyeku (1943) 9 WACA 195. In this case the accused was charged with murder and the only important evidence against him was the statement of the deceased shortly after he had been stabbed. He said ‘’Bang has shot me’’ and this statement was made in the absence of the accused. It was held that this statement was inadmissible.

 

Lord Atkin explained that the statement  admissible  under  the  head  of  res  gestae  is  not admissible as rebutting the accuser’s own evidence of the facts stated, but  as  evidence of facts within the knowledge or belief of the person making the statement. See R v Christie, (1914) A C 545.

For a fact to be contemporaneous, the following must occur:

 

  • Inexplicably intertwined with the fact in issue as to form part of the same transaction.

 

  • It must occur at the same time as or about the same time as the fact in issue.

 

  • It must  be  proximate  to  it  and  there  must  be  no  time  lapse  between   making  of the statement and occurrence of fact in

 

Contemporaneous event in Civil Matters

In criminal cases, the requirement of contemporaneity is strict. The statements  made  must be practicably contemporaneous with the act in question but a bit relaxed in Civil matter. Because transactions in civil matters are long drawn, the requirement of contemporaneity is less strict than in criminal matters. An example of this is the case of Homes v Newman [1931] 2 Ch.112 at 120. It is a case where a title deed was deposited.

A memoranda was made more than eighteen months thereafter.  On the question as to the nature of transaction envisaged by the deposit of title deed, the court held that the memorandum was admissible to show that deposit was for a  mortgage.  The memorandum was also admissible as part of the res gestae since it was made during the continuance of the deposit.

Take note that it is essential that the words sought to be proved by hearsay (e.g.  the words heard by the witness) should be, if not absolutely contemporaneous with  the action or event, at least so clearly associated with it that they formed part of the thing being done, and so were an item or part of the real evidence, which are not merely a reported statement.

 

Where the words are sought to be proved for the purpose for identification in criminal trial, the action or event with  which  the  words  are  associated  must  be  the  commission of the crime itself.

Accompanying statement and declarations must explain and relate to the fact in issue which they accompany and such that they are regarded as forming part of it – not to any previous or subsequent fact. They are pars reigestae or  as often  described:  part of  the res gestae. Such statements and declaration are not:

  • Proof of the fact which they accompany
  • Evidence of the truth of the matter stated
  • Exceptions to the hearsay rule

The statements and declarations are original evidence and must be established independently. See the case of Agassiz v London Tramway Co. Ltd (1873) 21 WR 199 27

L.T. 492. I n t h i s c a s e  t h e  Defendants  were  sued  for  negligence  and  the fact in issue in this case was whether a collision had been caused by the driver of a train car. A few moments after the collision a conductor said to one of the passengers:

 

“He (the driver) has already been reported for he has been off the line five or six times today – he is a new driver”. The statement was held not part of res gestae and was inadmissible, the reason being that it did not relate to the collision which was the fact in issue. It merely related to past disconnected acts of the driver.

See also the case of Milner v Leister (1862)

The question before the court was whether C had sold  certain  goods  to  B  formally or only to B acting as agents for A. The sale was conditional upon  the result of an enquiry made to B  who  was  to  give  a  reference. There  was produced in court a letter written by C to  his  own  agent requesting him to  enquire of T as to the credit of C and also of B. The letter stated:

“B is making large purchases for A”. Held: the letter is admissible as part of the transaction in corroboration of other evidence; but was of itself  no proof that B’s purchase of the goods was on behalf of A.

 

Also in Davies v Fortior Ltd (1952). H died as a result of falling into a bath of Acid. Two minutes of  being  dragged  out,  he  was   heard  to  say  “I  shouldn’t   have  done  it”.In   an action for Negligence by H’s widow, it was held that this statement was admissible as forming part of res gestae to support an inference that H had been guilty of some negligence misconduct.

 

In R. v Hunt, exclamations of those present at the meeting and the inscriptions on  the  flags and banners displayed, were admitted to prove that an assembly was unlawful and seditious. Sometimes the central transaction is referred to as res gestae while the constituent or accompanying facts are regarded as “parts of the Res Gestae. But it is sometimes not easy to determine whether a declaration is part of the res gestae because  it accompanies and explains some fact in issue.

It must explain fact in Issue: The traditional view is that statements and declarations which form past of res gestae are admissible to explain or corroborate the fact in issue which they accompany. They do not prove the truth of what they assert.

In reality, statements or declarations would be explanatory only if they are prima facie time (Nokes). In such a case, they are actually admitted as  proof of  the truth  of  what they assert. Isn’t that a naked admission of hearsay?

 

It has been established that the locus classicus on this principle is the case of Agassiz v London Tramway Co. Ltd (1873) 21 WLR 199 . Here the Plaintiff sued the Defendant company for negligence arising out of a collision by the Defendant’s tram in which the plaintiff was injured. After the collision, a passenger said of the driver, ‘’this fellow’s conduct ought to be reported’’ and the conductor replied that, ‘’he had already been reported for he has been off the line five or six times today, he is a new driver.’’ It was held that this statement was inadmissible as the collision was over and it referred not to the fact in issue but the past acts of the driver.

 

See also The Schwalbe (1859). This is a case of collision between two ships. In order to prove that one of the ships was to blame, evidence was admitted that her Pilot, immediately after the collision, stamped his foot and exclaimed;  “The dammed  helm is still a – star boarded.” This exclamation was admitted to prove that the helm was a- starboard and to prove it by the assertion of a person not called as a witness i.e.  by hearsay evidence (Phipson).

It must have been made by the actor: These are talks of the person by whom the statement or declaration is made. Legal writers have argued that it  is  a  requirement  of  res gestae that the statement  or declaration must be made by the victim or actor.  But there judicial authorizes of statements made by non-actors and non-victims that have been admitted as part of the gestae. The authority of this principle has been derived from the case of Howe v Malkin (1878) 40 L T. 196. In this case a statement made by a person concerning the boundaries of property contemporaneously with the performance of some act on the land by some other persons was held inadmissible because the declaration was by one person and the accompany act was performed by another person.

 

But it is worthy of note that this cannot be taken as a general position of law because in criminal cases declarations by victims and by assailants are often received in evidence under this heading.

The rationale for admissibility of these statements and declarations in evidence may be explained on the ground that;

. human utterance is both a fact and a means of communication, and

. human action may be so interwoven with words that the disassociation of the words  form the action would impede the discovery of the truth: per Lord Normand in Tepper v R .

At common law, res gestae are statements and declarations(oral or written) made contemporaneously and tend to accompany or explain a fact in issue or relevant fact. There is tendency to misconstrue contemporaneity as synonymous with  facts occurring at the same time  and place.  The requirement  of  contemporaneity  may be strict in criminal law but it is less so in civil matters.

 

Section 4 Evidence Act, 2011 permits the court to admit facts which form part of the same transaction whether they occur at the same time and place or at different times and places. The phrase ‘at the same time and place’ answers the description of contemporaneity. The other phrase “or at different times and places” permits the admission of facts which may not be substantially contemporaneous as res gestae. (this is in line with the principle established in the R v. Ratten’s case)

ADMISSION

Admissions belong to the category of facts, which do not need proof. They are also exceptions to hearsay rule. Admission and confession are both acknowledgements of facts in issue but they are not synonymous with each other. They are different. This unit is concerned with admissions. You shall learn about confession in the next unit. Meanwhile  you should read Evidence Act, Section 20-27 about admission, and section 28 – 32 about a confession.

What is admission?

An admission is a statement oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and in any of the circumstances defined in the Evidence Act.

Forms of Admission

Admissions may take any of the following forms:

  1. Formal admission
  2. Informal Admission
  3. Admission made in a representative capacity
  4. Admission made “without prejudice”

 

Formal Admission

 

This is an acknowledgement of facts in issue made by a party in a civil proceeding. They may be contained in a party’s pleading. Any party may, by leave of the court, call upon any other party by notice filed in court and duly served under an order of the court to admit any document or fact. A party may, on his or her own, file notice that he or she admits the truth of the whole or any part of the case stated or referred to in the writ of summons, statement of claim or of defence

or other statement of any other party. It is also open for a party or his or her counsel to admit facts at the trial. Any fact admitted in this way may be taken as established.

 

Formal admission may be made as follows:

  • by the pleadings
  • by answers to a notice to admit facts
  • by counsel or solicitor in the course of an action
  • in answer to interrogatories
  • by agreement made before or at the trial by the parties or their

 

Informal Admission

Read Section 20. Evidence Act

An informal admission is a written admission made before or at the proceedings, and admissible at subsequent criminal proceedings relating to the same matter. Informal admissions are admissible against the party in all cases where relevant. They may also be impeached on the ground that they are untrue or were made in error, ignorance or levity.

As an exception to hearsay rule, an informal admission is relevant and admissible provided it satisfies the specified conditions precedent. It is for the court to decide the question having considered the circumstance, under which it was made and what due weight is fairly to be attached to it.

 

You may ask if an admission by Mrs. X can bind M. The answer may turn out to be whether or not there has been a relationship of the type enumerated in section 122 of the Evidence Act. Under English Law an admission by a drunken person may be admissible even though he was given the alcohol in the hope that he would make the admission. It is most likely that a Nigeria court will follow this and admit in evidence an admission made by a drunken man.

 

It appears then that an admission may be voluntary or involuntary. Much depends on the weight, the particular judge or situation attached to it. The court may in its discretion require the facts admitted to be proved otherwise than by such admission.

 

A statement made to oneself in soliloquy, if overheard by a stranger, may amount to an admission against the maker. Admission is a question of law not logic.

 

Admissions made in a representative capacity

When a party sues personally, an admission made by him in a representative capacity is evidence against him or her, but not vice-versa.

 

Admission made without prejudice- section 26

 

Admissions made “without prejudice” cannot be given in evidence. This exclusionary rule extends to:

  • an answer to a letter where the original letter is marked “without prejudice” but the letter is not so
  • A letter followed by a later one in explanation when originally the letter is marked “without prejudice”

 

The rule is ousted in the following cases

  • where both parties consent
  • in criminal cases e.g. defamatory letter
  • in proof of act of bankruptcy
  • in proof of the terms of a compromise, which has been

Who may Make Admission- section 21

Admission may be made by any of the following:

  • A party to a proceeding
  • An agent or agents of the party
  • A party suing in a representative capacity
  • A party having proprietary or pecuniary interest
  • A predecessor in title or person from whom an interest is derived
  • A person whose position must be proved as against a party to the suit
  • A party expressly referred to as a party to the suit or mentioned in a Will, who has a particular knowledge of the issue

Admission, which the court may admit

An Admission constitutes a waiver of the ordinary requisites of proof as a party who makes an admission against him or herself is presumed to be admitting the truth. Examples of the admissions, which the court may admit are the following:

  1. a party’s statements against him or herself if such statements are legally relevant. (A person’s admissions are not admissible for him or her).
  2. An admission by one person may be admissible in evidence against another e.g.admission made by one’s privies. Other examples are:
  3. Statements made by a trustee or agent within his or her authority, against the cestui que trust or
  4. Partners are bound by each other’s admissions concerning the partnership business
  5. A wife may make an admission against her husband, if she is his agent, agency being implied in the case of purchase of
  6. A Solicitor or counsel’s admission may bind their clients unless forbidden to so by the client.
  • Admission by a real party in a litigation is admissible against a nominal party conducting the case. So also are:
    • Statement of interest in an insurance policy against those in whose name the policy is effected.
    • Statement by a ship owner against the master when the latter sues to recover freight.
    • A statement made by a nominal party may also be binding on the real
  1. Parties who have a joint interest (other than in tort) bind each other. Examples are:
    • Admissions of joint tenants partners and co-contractors, provided – the interest is joint (not common) and the admission is made during the existence of joint
    • An acknowledgement of a statute-barred debt made by one debtor does not revive the debt against the other; nor admission of co-defendants against each
  2. Predecessors in title’s admission against successors, where the title to property is in question
  • a statement made in the presence of a party (or his or her agent) whether by words or conduct, he or she can be deemed to have admitted its
  • A document in a party’s possession, which he or she has adopted or acted

 

Let us take further illustrations

Akinbiyi V. Anike (1959) P sues to recover a sum of money alleged to have been paid by him on behalf of D.D. counter – claimed for the return of some of her goods wrongly detained by

  1. In support, she sought to tender in evidence a list of her goods and value. P did not object nor also cross examined D as to the accuracy. Held failure to cross-examine as to the accuracy of the list was an admission that it was correct.

Oloko V Oloko (1961)

R cross petitioned for dissolution of marriage with P. on grounds of adultery, R made allegation of adultery by P. to a police officer in her presence and to her hearing but P did not deny. Held failure to deny is insufficient proof of an admission of adultery.

Basele V Stern (1877)

  1. sued D for breach of promise of marriage and called her sister who deposed to the fact that she heard P say to D. “You know, you always promised to marry me, and now you don’t want to keep your words” D did not answer beyond giving her money to induce her to go away. Held silence amounted to an admission of promise to marry.

Wieldemann v Walpole (1981). It was held that D’s failure to reply to letter from P. in which P stated that D had promised to marry her did not amount to a promise to marry. The court drew a distinction between a business letter and other correspondence. A failure to reply to a business letter may tantamount to an admission in several matters, it may be better on many occasions not to send replies.

 

One may add that an accused person is not obliged to say anything and silence cannot be an admission of the offence charged or fact in issue.

The court will look at the facts of each case in order to determine whether a failure to reply to a letter would amount to an admission. “Mariaty V London Chatham and Dover Railway (1870) it was held that the subordination of a witness to perjure in support of a claim for damages for injury in a railway accident was an admission that P’s claims were false. In collusion cases, admission of fault by one of the drivers is an admission only against its maker, not the owner of the vehicle. You would observe from these cases that conduct (eg. Silence) has been held to be admissions in some cases and non-admission in others. Admission by conduct does not appear to be expressly mentioned in section 122 of the Evidence Act, but courts lean in favour of active conduct.

 

 CONFESSION

In this discourse the relevant sections of the Evidence Act to bear in mind is sections 28-32 of the E.A

S.28 E.A defines 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.

Section 29 (1) declares a confession made by a defendant relevant and admissible provided it is not excluded by the other provisions of S.29 E.A

Any distinction between confessions and admissions?

You will note the word admission is included in section 28 E.A. The inclusion of the word admission in the definition of confession raises the controversy on whether there is indeed any distinction between confessions and admissions.

See “The distinction between confessions and admissions myth or reality? A case for abolition”- Prof. S.A Adesanya (1970) Nigerian Journal of Contemporary Law P.1

Compare with:

Nokes on Evidence 4th Ed. P.298 where it is contended that the word admission is synonymous with admission of some facts relevant to the crime whereas confession, is associated with full admission of some facts relevant to the crime. According to Prof. Nokes, admission is therefore restricted to incriminating admission of some facts while confession deals with confession to the entire crime.

Prof. Owoade has also contended that the definition of confession is wide enough to include incriminating admission falling short of a full confession. Relying on the decision in Balogun & Ors v. Attorney General of the Federation (1995) 5 NWLR (Pt.345) p.442 and Commissioner of Customs and Excise v. Harz & Power (1967) 51 Cr. App. R. 123 at 155. He contends that for the purpose of admitting incriminating admission in evidence, there should be no practical distinctions between such admissions and full confessions. See “Admissions and Confessions” in Law and Practice of Evidence in Nigeria (Afe Babalola (ed) p.62

Notwithstanding the inclusion of admission in the definition of confession fundamental distinctions exist between admission and confession. For example:

  1. while admissions are made in civil cases, confession are made in criminal cases.
  2. Further, while it is possible for a party or his agent to make an admission, in confession, only a party can make confession. An agent or counsel cannot confess for or on behalf of the accused
  3. While it is possible to convict an accused person solely on his confession, admission may not be enough to enter judgment against a defendant in a civil case especially in an action or declaration of a right.

S.29(1) provides that a confession made by a defendant is relevant and admissible against him where it relates to any matter in issue before the court provided such confession has not been excluded by the same S.29.

S.29 (2) (a) a confession obtained as a result of the oppression of the person who made it is irrelevant and therefore inadmissible.

S.29 (2) (b) a confession made as result of anything said or done which was likely in the circumstances existing at the time to render the statement unreliable, the statement will not be admissible unless the prosecution proves beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of s.29 E.A.

A confession is an admission against interest, consequently, it offers best evidence on the guilt of the accused. Not surprisingly, police officers find it attractive in their bid to secure conviction. AS rightly held in Sofola v The State (2005) FWLR (Pt. 269) 1751 at 1782:

“A confessional statement is the best evidence in our criminal procedure. It is a statement of admission of guilt of the accused and the court must admit it in evidence unless it is confessed at the trial. Once a confessional statement is admitted, the prosecution need not prove the case against the accused beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the accused”

By reason of the importance and the impact of confessional statements, rigid rules have been developed to ensure the voluntariness of confessions. Confessions which are not shown to be voluntary or confession obtained by oppression are excluded.

 

Kindly note that confessional statements can be challenged on two distinct grounds:

  1. Where the accused alleges that the statement is not his own and denies authorship of the statement
  2. Where he admits authorship but states that he did not voluntarily make the statement.

In the former situation of denying the authorship, the statement is still admissible but the court will decide on the weight to be attached to it. See Akpan v State (1992) 6 NWLR (Pt.248) 438, Ovie v. State (1985) 4 SC 1 at 27. In the latter situation the court conducts a trial within a trial to determine the reliability or otherwise of the statement, where the statement is not shown to be reliable, it is inadmissible.

Failure to conduct a trial within a trial in a case where the admissibility of the statement on ground of unreliability is challenged, renders the confession inadmissible. See Obizodo v State (1987) 4 NWLR (Pt.67) 1. In a trial within trial the burden of proving reliability of the confessional statement is on the prosecution.

Requirements of a Valid Confession

  1. A confessional statement must be free and voluntary, Habibu Musa v The State (2013) 53 NSCQR pp. 90-91 per Peter-Odili, JSC

In R v Thompson (1893) 2 QB 2, the accused was tried for embezzling the money of the company, on being taxed with the crime by the chairman of the company, he said, “Yes I took the Money” and afterwards made a list of the sum he embezzled and with the assistance of his brother paid back part of the money to the company. The chairman stated that at the time of the confession no threat was used and no promise was made as regards the prosecution of the accused but admitted that before receiving the confession, he had told the accused brother, “it will be right for your brother to make a statement” and therefore the evidence of the confession ought d the court drew the inference that the accused when made the confession, knew that the chairman had spoken those words to his brother. It was held that the confession of the accused had not been satisfactorily proved to have been free and voluntary and therefore the evidence of the confession ought not to have been received.

  1. A confessional statement must be direct, positive, true and unequivocal of facts that satisfy the ingredients of the offence the accused person confesses to have committed. Ikpesan v. State (1981) 9 SC 17

In Afolabi v C.O.P (1961) 1 ALL NLR 654 the Appellant was a shop-keeper, who was convicted of stealing specific items and properties of his employers. The evidence of the prosecution was that a document had been prepared by the employers showing 23 alleged missing items and properties from the stock of goods when the list was shown to the Appellant by the Manager in the presence of a co-employee. The Appellant was alleged to have told the manager he had been busy with election campaign and had taken certain of the stock and sold them in order to assist with his election expenses. He however, did not indicate which of the goods were taken out. The accused did not specify which of the items he said he sold and converted the funds to his own use. It was held that the accused had not confessed that he committed the crime.

In Akpan v State the appellant was arranged for killing the deceased, his statement to the police was to the effect that during a scuffle, he hit the deceased with an Iron Rod. The police did not tender any medical report to show that the accused’s action caused the death of the deceased.  The police relied on his statement arguing that he had confessed to the killing.

It was held that there was no clear evidence of the cause of the death. The court cannot speculate.

 

It has been held in the case  of FATUMANI v. R  (1950) 13 WACA 39, the Court held as follows:

“For admitting a confessional statement, it must be shown to be free and voluntary. In other words, that it is not induced by threat or promise. A confessional statement obtained against the background of inducement or threat or promise is inadmissible. The inducement must be made by a person in authority, for instance police.” See also R v. HASKE  (1961) SCNLR 90.

 

  1. A confessional statement is only admissible against the maker not anyone else, not against his accomplices Grange v FRN (2010) 7 NWLR (pt.1192) 135 @ 142; Agents, Counsel and spouses are incapable of making confession on behalf of the accused person R v. Asuquo Etim Inyang (1931) 10 NLR 33
  2. The Court in the case of Dupup v. Pinlin (1975) 3 ALL ER 175 held thus:

“The burden of proving the voluntariness of the confession lies on the prosecution and can only be discharged if the Court is satisfied beyond reasonable doubt that the confession is voluntary and the question whether a statement is voluntary is for the judge ”

  1. The Evidence Act stated further in Section 29(1) that in any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceeding and is not excluded by the Court in pursuance of this Section. The C.A held in Samuel Obasi v. The State (2020) LPELR-49679(CA) that a confessional statement is the best evidence in our Criminal Procedure. And once a confessional statement is admitted, the prosecution need not prove the case against the accused person beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the accused.

A person can be convicted on confessional statement alone where same is direct, positive and proved. This is because there cannot be a more appropriate person to give evidence of the guilt of the accused more than the accused himself.

  1. A confession can be made prior to the time when the accused was brought before the court R v Eka Ebong (1947) 12 WACA P.139.

It is important to know that under the repealed Evidence Act, the test of admissibility of a confessional statement is the voluntariness of the confessional statement. However, the Evidence Act 2011 has introduced a new test, the test of reliability of a confessional statement. S. 29 (2) Evidence Act, 2011.

Therefore, where the statement is made in circumstances which suggests its unreliability, it will be inadmissible.

See Babalola Borishade v. Federal Republic of Nigeria (2012) LPELR-45726(CA)

HUSSEIN MUKHTAR, J.C.A. held that an extra judicial statement made by the appellant that was not voluntary is not admissible and if wrongly admitted, it has to be expunged from the record. It is only admissible in evidence where it is made by the accused person voluntarily. In other words, the voluntary element in the statement is what qualifies it as admissible, which in the instant case is totally absent.

Section 29(2) , (3) & (4) of the Evidence Act 2011 provides thus:-

“29(2) If,  in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained –

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might lie made by in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable that the confession (notwithstanding that it may be true) was not obtained in it manner contrary to the provisions of this section.

(3) In any proceeding where the prosecution proposes to give an evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either Subsection (2) (a) or (b) of this Section.

(4) Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.”

The prosecution has the onerous duty to prove beyond reasonable doubt that an extra judicial statement was made voluntarily. Nwachukwu v. State (2002) 12 NWLR (Pt. 782) 543. A voluntary confession is a relevant fact and admissible against the person who makes it only but no other person.

 

Under S. 29 (5) oppression includes torture, inhuman or degrading treatment, and the use of threat or violence whether or not amounting to torture.

According to Sachs J. R. v. Priestley (1965) 1 CAR P.1

Oppression imports something which “tends to sap and has sapped that free will which must exist before a confession is voluntary. Whether or not, there is oppression in an individual case depends upon many elements. They include such things as the length of time intervening between periods of questioning whether the accused has been given proper refreshment or not and the characteristics of the person who makes the statement.”

The principle of oppression was applied in State v. Oloyede (1973) ESCLR p.1, the accused had undergone interrogation at different times for 7 days. He had also been kept in solitary custody during which no attention was paid to his failing health. He was weak both physically and mentally. He was later rushed to the hospital because of ill health. Agbaje J had no difficulty in holding that the statement made by him under such bad state of health was involuntary and therefore inadmissible as same was made as a result of oppressive conduct.

 

Illegally or Improperly Obtained Evidence

Section 14 of the Evidence Act, 2011, that provides

“14. Evidence obtained –

  1. a) Improperly or in contravention of a law; or
  2. 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 outweighed by the undesirability of admitting evidence that has been obtained in the man evidence was obtained.”

In addition, The Nigerian National Assembly enacted the Anti-Torture Act 2017 to expressly criminalize, prohibit and punish torture and other forms of   cruel, inhuman or degrading treatment.  (Compare to S.34 CFRN). It offers protection for victims and witnesses of torture.   Article 1 imposes an obligation on government to ensure that all persons, including suspects, detainees and prisoners are respected at all times and that no person under investigation or held in custody is subjected to any form of physical/mental torture. It encourages government to adhere to domestic and international standards on absolute condemnation and prohibition of torture. See Peter Nemi v. AG Lagos State. It is noted that the act of torture can be physical or mental. Article 2 describes “acts of torture’.  Torture is committed when an act by which pain and suffering, whether physical or mental, is intentionally inflicted on a person toobtain information or confession from him or a third person punish him for an act he or a third person has committed or suspected of having committed intimidate or coerce him or third person for any reason based on discrimination of any kind.

 

The position of the Nigerian court is summed up by  Justice HAMMA AKAWU BARKA, J.C.A. in DANIEL OKAFOR v. THE STATE[1] as follows:

“evidence which is relevant whether in civil or criminal trials is not excluded merely because it was illegally obtained. This has been the position of the law expressed by the Supreme Court and the Court of Appeal. The concern of the court is whether the evidence is relevant, and it is not of concern of the court how the evidence was obtained. See the cases of Torti vs. Ukpabi (1984) 1 SCNLR 214; Sadau vs. The State (1968) 1 All NLR 124[2]

Akingbola Johnson v Federal Republic of Nigeria (2011) LPELR-19746(CA):

“The law is well settled that there is no general rule of law in civil as well as in criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained. This is subject in criminal cases to the discretion of a trial Judge “to set aside the essentials of Justice above the technical rule if the strict application of the later would operate unfairly against the Accused.” This means that the Judge can, where the interests of Justice demand it, exclude evidence which  otherwise would be relevant considering the circumstances of its discovery and production. See the case of:- – Sadau & Another vs. State (Supra) . In this appeal there is evidence on record that when the Accused/Appellant was searched, the sum of (=N=10,000.00) Ten Thousand Naira in =N=500.00 denomination was recovered from his breast pocket. It was admitted in evidence. My humble view here is that the admission of the (=N=10,000.00) Ten Thousand Naira in evidence did not in any way operate unfairly against the Appellant who not only admitted receiving the money but went ahead to base his defence on it. …In the case of:- Sadau & Another vs. State (supra) it was held among others that:- “If the proper procedure was not followed, an irregularity may or may not have occurred depending on the facts or circumstances, but in any case the consequence of an irregularity will attach to the persons executing the warrant and not to the evidence which is thereby obtained. In this case the properties recovered in the house of the Appellant were the subject matter of the charge against him and it will be useless to dispute their relevance to the charge which was being tried… “Consequent upon the foregoing it is my view that the said (=N= 10,000.00) Ten Thousand Naira was properly admitted in evidence. Bada JCA (Pp 16-17 Para C)

In sum, The Evidence Act, 2011, expressly endorses the admissibility of improperly obtained evidence in section 14.  This is however subject to the discretion of the court, to weigh the desirability of admitting same and decide accordingly.

 

PRESUMPTION

 

The gist of Law of Evidence is relevance, weight and admissibility or the proof and establishment of facts or disproof. A fact is not proved if it is neither proved nor disproved.  A fact is proved when after considering the matters before it, the court either believes it to exist or considers its 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. To this end, a person, who desires a court to give judgment as to any legal rights or liability dependent in the existence of facts, which he asserts, must prove that the facts exist (section 131 Evidence Act, 2011, Elemor v. Gorriolende (1968). Thus it lies not on the party who denies but on him who asserts (affirmatively or negatively) to prove the facts alleged. The law also provides exceptions to this rule that he who asserts must prove and would require no evidence of certain facts. Rather, the law permits an inference or deduction, having regard to the rules  of law and practice of courts. Such inferences or deductions are presumption – a kind of invocation of the rule of law, which compels a judge to reach a particular conclusion in the absence of evidence to the contrary. In essence, a presumption is a substitute for evidence, or one way of establishing a matter other than by evidence. In this unit, you shall learn how law has defined ‘presumption’, its forms, applications and effects.

 

Definition

The Evidence Act, 2011 does not define the term “Presumption”. The Act merely states:

Section 145

  • Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of
  • Whenever it is directed by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is
  • When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving

Admission and Presumptions

 

Presumptions, like admissions, are inferences as to any facts in issue or relevant facts, and require no prove or evidence to the contrary. But the court, in its discretion, may require facts (though admitted) to be proved otherwise than by admission. Once the requisites are fulfilled, the court must draw the necessary presumptions. See sections 20-27, Evidence Act, 2011.

Judicial Notice and Presumptions

 

What is Judicially Noticed is presumed and like presumptions are exceptions to the rule that who asserts must prove. If the court is called upon to take judicial notice of any fact in contradistinction from presumptions, it may refuse to do so in certain circumstances.

 

Presumption then may be defined as:

 

  • Assumption that a fact exists, based on the known or proven existence of some other fact or group of
  • An inference as to the existence of one fact from the existence of some other fact founded upon a previous experience of their

A presumption implies that some facts are to be taken and deemed to be so taken without proof unless the court insists on proof. Most presumptions are rules of evidence which call for certain result in a given case unless the adversely affected party rebuts it with other evidence. In some cases, a presumption merely shifts the burden of producing evidence or persuasion to the opposite party, who can then attempt to overcome the presumption.

Types of Presumptions

A number of presumptions which apply in both Criminal and Civil proceedings can be founded scattered in the Evidence Act, and other statutes. Let us look at some of them.

 

Irrebuttable Presumptions (Presumptio Juris et de jure)

This type of presumption is conclusive and incontrovertible and does not admit of evidence in disproof.

Examples are:

  • That a child under the age of seven years is in doli incapax, cannot have a guilty mind and therefore incapable of committing a criminal offence. He lacks criminal responsibility (Criminal Code, section 30 and Penal Code, section 50).
  • That a boy who is under the age of twelve years is incapable of committing rape or other offences involving carnal knowledge as a principal offender. Criminal Code section
  • That if a marriage is celebrated with license or banns published, the parties is presumed to have been resident for the requisite
  • That all men and women know the law
  • Where an agent receives a bribe, it is presumed that
    • The agent was influenced by the payment to the detriment of his principal, and;
    • The principal has suffered damage at least to the amount of the bribe. Lord Denning thought that it is a misuse of language to describe these types of prescriptions as conclusive. He described them as:
  1. Procedural equivalents of substantive rules, which may have independent
  2. Merely meaning that “on the proof of certain facts, the court must draw a particular inference, whether true or not and it cannot be rebutted: (61 LQR 381: Industrial  and General Mortgage Co Ltd V Lewis (1949).

 

Rebuttable Presumption (Presumptio Juris)

This type of presumption must be drawn once the requisite premises are established. Examples are:

  • That a child who is seven but under twelve years has no mens rea see the Constitution 1999

 

  • That a person who has not been heard of for seven years by someone who might be expected to hear of him is presumed dead. There is no presumption as to the time of death. Section
  • Every person charged with a criminal offence, whether in criminal or civil proceedings, shall be presumed to be innocent until he/she is proved guilty. The Constitution,
  • Every person is presumed to be of sound mind and to have been of sound mind at any time which comes in question until the contrary is proved. Criminal code S.
  • That a spouse is dead, if upon a petition by the other spouse, that spouse has been continuously absent from the petitioner for a period of seven years or more and within that time, the petitioner has had no reason to believe his or her spouse to be
  • That for all purposes affecting the title to property, where persons who are successively entitled to inherit property die in circumstances in which it is impossible to determine, who died first, they are presumed to have died in order of seniority. The junior is presumed to have survived the older unless it is proved that the elder survived the junior.
  • That he is a legitimate son of a man, if he is born during the continuance of a valid marriage between his mother and the man within 280 days after its dissolution, the mother remaining unmarried. Section
  • That everyone intends the natural consequences of his or her own acts or
  • That a bill of exchange was accepted for value and that the holder is a holder in due course.
  • See Section153 as to presumption as to message forwarded by a telegram Glanville Williams has identified two classes of rebuttable presumptions:
    • Persuasive presumptions:

These presumptions confer a legal burden on the party trying to avoid the presumption.

  • Evidential Presumption:

This class of rebuttable presumption obliges a party to adduce a prima facie

evidence.

Lord Denning is of the opinion that presumptions are either “Compelling” or “Provisional”

 

Compelling Presumptions:

These presumptions arise where a party proves facts from which the Court MUST in law draw an inference in his favour, unless the other side proves the contrary or proves other facts, which the law recognizes as sufficient to rebut the presumptions (61, LQR 380). It requires a strict proof to defeat a compelling presumption.

Provisional Presumptions

These are exceptions to Compelling Presumptions, Examples are:

  • Presumption of innocence
  • Presumption of sanity
  • Presumption of death after seven years

 

Provisional presumptions are merely guides to the Court in deciding whether to infer the  fact in issue or not. Relevant facts or circumstances are often said to raise a presumption or make a prima facie case and so they do in the sense that from these the fact in issue may be inferred but not in the sense that it must be inferred unless the contrary is proved. A suspicion suffices to counterbalance a provisional presumption.

Further Presumptions

 

Judicial Presumption of certain facts

The Evidence Act, Section 167 provides that:

“ Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the court may presume that:

 

  • a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods, knowing them to be stolen, unless he can account for his possession:

 

  • a thing or state of things, which has been shown to be in existence within a period shorter than within which such things or state of things usually ceases to exist, is still in existence;
  • the common course of business has been followed in particular cases;
  • evidence which could be, and is not produced would, if produced, be unfavorable to the person who withholds it; and;
  • when a document creating an obligation is in the hands of the obligor, the obligation has been

 

Section 167 (a) is often referred to as evidence of Scienter.

Section 167 (b) is evidence of continuance. That is to say things, circumstances or positions, once proved to have existed at a certain date, continue to exist in such a state or condition for a reasonable time.

 

Presumption of Continuance

This presumption of continuance applies to partnership, sanity, marriages and life.

A thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence. Section 167 (b)

 

The evidence which could be and is not produced would, if produced be unfavorable to the person, who withholds it. Section 167 (d)

 

When a document creating an obligation is in the hands of the obligation, the obligation has been discharged. Evidence Act, Section 167 (e).

 

All things are presumed against a wrong doer. The maxim is: Omnia praesumuntur contra spoliatoren. Example:

An employer, who fails to follow the usual safety precautions in his or her trade, is presumed to be negligent.

If a person wrongfully takes a thing and detains it or converts it, it is presumed to have been the best of its kind.

 

If Bola, to whom a legacy has been left by Will, destroys a subsequent Will, it is presumed that the later Will had revoked the legacy.

 

A ship that is lost within a short time of sailing is presumed to be unseaworthy.

If a deed or Will is produced from a proper custody and is 20 years old. It is presumed to have been properly executed. (See Sections 145-168. Evidence Act, 2011.

 

Presumption of Negligence under the doctrine of (Res ipsa loquitur: the thing speaks for itself);

Where a thing is under the management of the defendant or his servants and an accident occurs, which is such that in the ordinary course of events, it would not have happened if those who had the management used proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.

 

In other words, if Ado suffers damage in consequence of one or more things, which were under the exclusive control of the defendant, or his servant, the presumption of negligence may be inferred.

 

Equitable presumption or presumption in Equity.

  • Where there is a fiduciary relationship, undue influence is to be presumed against the party in the fiduciary position in matters of contract and conveyance of property

 

  • That if Kalu purchases property, but has it conveyed into Jenifer’s name, Jenifer is a trustee for

 

Presumption of Regularity:

 

The presumptions which gives validity to acts are favoured. Examples:

 

 

  • when any judicial or official act is shown, to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.

 

  • when it is shown that a person acted in a public capacity, it is presumed that he had been duly appointed and was entitled so to
  • when a person in possession of any property is shown to be entitled to the beneficial ownership of it, there is a presumption that every instrument has been executed which was the legal duty of his trustees to execute in order to protect his

 

  • when a minute is purported to be signed by the chairman of a company incorporated under the companies and Allied Matters Act and purporting to be a record of proceedings as a meeting of the company or of its directors, it is presumed, until the contrary is shown, that such meeting was duly held and convened and that all proceedings at the meeting have been duly had and that all appointments of directors, managers and liquidation are

The presumption of regularity is also described as omnia praesumuntur rite esse acta (all things are presumed to have been done rightly).

Further illustrations:

 

Suppose it is sought to prove that a person has been appointed to the office of the Study Centre Director, it suffices to prove that Professor YZ has acted in that capacity.

The presumption applies only to appointments to public offices. In respect of private office appointments, there must be a strict proof of which may demand the production of the instrument of appointment coupled with the production of an official to verify it.

A marriage which has been celebrated in a place of worship is deemed to have been celebrated in a place duly authorized for that purpose.

A deed or Will is presumed to be properly examined if it is produced from proper custody and it is 20 years old. See Ogbonifo v. Aiwerevba (1988). The Court may also presume the genuineness of the recital of such a document where a deed contains an alteration, the alteration is presumed to have been made before execution. If the alteration is in a Will, the alteration is deemed to have occurred after signature. Conversely statements of testator as to alteration must be made before, but not after execution to be admissible.

 

A document required by statute to be served by post is presumed to be duly received upon proof that:

  • The envelope was properly addressed
  • The envelope bore adequate stamping
  • The document was duly posted
  • The document was not returned

In Albion Court Ltd. v. Rao Investment & Duo Ltd. & ors (1992), the CA. (Lagos Division) held that the Court of law must presume the regularity of a judgment or ruling until it is set aside on appeal.

Statements by judges, magistrates or judicial officers are to be accepted as a correct account of what took place in court Queen v. Thomas Ijoma (1960)

Omnia praesumuntur Contra Spoliatoren (all things are presumed against a  wrongdoer)

A chimney-sweep’s boy found a ring with a Jewel; He handed it to a goldsmith’s assistant to value. The latter refused to return the jewel on demand and was held liable for tort of conversion. He could not produce the jewel and was made to pay the value of the best  stone of the same kind. See Armory v. Delamirie (1722).

 

Thus a person, who wrongfully takes a thing and detains or converts it, is presumed to have taken the best of the kind.

 

D, by will, leaves a legacy for P who is found to have destroyed a subsequent Will, it is presumed that the latter had revoked the legacy.

 

Presumptions as to genuineness

 

The Evidence Act empowers the court to presume the genuineness of:

 

  • Official Gazette of Nigeria, any state, or of any country other than Nigeria Evidence Act, 2011, Section
  • Newspapers, Journal or copy of resolutions of the National Assembly printed by the Government Printer. (National Electoral Commission & 3ors v. Sunday Ogonda Woidi (1989).
  • the Rental of a document, properly executed and purporting to be 20 years old:

Johnson v. Lawanson (1971)

  • A copy of every document purporting to be a certificate duly certified by any authorized officer Section 146, Evidence Act
  • Document produced as record of evidence in a judicial proceeding or before any officer authorized to take such evidence, surrender or confession and purporting to be duly signed by a judge. Magistrate or any such officer. Evidence Act Section

 

  • Seal, stamp, or signature authenticating any document admissible in other countries without proof of seal or signature. Evidence Act 2011, Section

Other presumptions include;

 

Presumptions as to powers of attorney Evidence Act 2011, Section 150 Presumptions as to Public maps and charts, Section 151

Presumptions as to Books Section 152

Presumptions as to handwriting etc in documents 20 years old, Section 155 Presumptions as to proper custody, Section 156

Presumptions as to date of documents, Section 157 Presumptions as to stamp of a document, Section 158 Presumptions as to Sealing and delivery, Section 159 Presumptions as to alternative Section 160

Presumptions as to age of parties to a conveyance or instrument Section 161 Presumptions as to statements in document 20 years old, Section 162 Presumptions as to deeds of corporation, Section 163

Presumptions of death from seven years absence and other facts- Section 164 Presumptions as to legitimacy and marriage sections 165 and 166

 

Few more critical presumptions need to be emphasized.

  1. Presumptions as to telegraphic and electronic messages: Section 153 provides:
    • The Court may presume that a message forwarded from a telegraphic office to the person to whom such message purports to be addressed corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the court shall not make any presumption as to the person by whom such message was delivered for

 

  • The Court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumptions as to the person to whom such messages was

 

Presumptions as to execution of documents not produced. Section 154 adds;

“The Court shall presume that any document called for and not produced after notice to produce given under section 91, was attested, and executed in the manner required by law’.

 

Presumption as to existence of certain facts Section 167: The Court may presume the existence of any facts which is deems likely to have happened, regard shall be added to the common course of natural events, human conduct, and public and private business, in their relationship to the facts of the particular case, and in particular the court may presume that:

  • a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods, knowing them to be stolen

unless he can account for his possession.

  • a thing or state of things which has been shown to be in existence within a remarkable shorter than that within which such things or states of things usually cease to exist, is still in
  • the common course of business has been followed in particular cases.
  • evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. And

 

  • when a document creating an obligation is in the hands of the obligor, the obligation has been

 

 

JUDICIAL NOTICE

Judicial notice requires that the court should act upon its own knowledge or upon a notorious fact. It is an acceptance of the truth of a fact by the court without proof. For this reason judicial notice is being regarded as another expression for a conclusive facts or prima facie fact. This however has been contested, as you will see in this unit.

 

Definition of Term

Judicial notice is an acceptance by court of the truth of a fact without proof on the ground that it is within the court’s own knowledge or not being out of professional knowledge of the judge himself.

The power of the court to take judicial notice may be obligatory, discretional, conclusive or prima facie.

 

Judicial notice is obligatory where:

  • Statute directs that a particular matter be judicially noticed. An example is the signature of judges of superior courts on official

 

  • The matters are what have been judicially noticed by well-established practice or judicial precedent.

 

Judicial notice is discretionary on matters, when the judge may notice, usually on the invitation of a counsel.

 

It is absolute or conclusive when no evidence in rebuttal is admissible. Conversely it is prima facie, where it is rebuttable.

 

What the court takes judicial notice of

The facts which are judicially noticed need not be proved. The Evidence Act expressly provides that “no fact of which the court must take judicial notice need be proved” (section 122, Evidence Act 2011).

 

The facts of which the court must take judicial notice are enumerated in section 122 of the Evidence Act. (Refer to the Act). These may be subsumed as follows:

 

( 1) Matters of Public law and government:

 

 

  • Existence and content of all public Acts of the National Assembly and Laws of the State Assemblies, unless the contrary is expressly
  • Proclamations, orders    in    council    and    regulations     issued    by    Government departments and printed by the government printing press;
  • Maritime Law of Nations

 

  • Public matters affecting the government of Nigeria e.g. Succession and demise of the President; Date and place of sittings of the National Assembly; existence and titles of recognized foreign sovereign, the Principal Officers of state and the heads of departments, past or
  • Wars in which the country is or has been

 

  1. The existence, extent and geographical position of Nigeria areas of Jurisdiction and of the territorial and administrative division of Nigeria into states, local governments, towns etc. but not whether a particular town is within a named local government or state.
  2. The law and custom of the National or States Houses of Assembly and courts; the existence and extent of the privilege of the each of the Houses of Assembly and the order and course of their
  3. Well known (notorious) Facts. The ordinary events of nature or business (e.g. tides, movement of planets); period of gestation, Public currency and
  4. Meaning of common words and phrases, standard of weights and measure

Does anyone need to be told that Lagos streets are crowded and dangerous, those Cats are domestic animals or that boys are naturally reckless and that the tiger is dangerous? Of course not. They are within the purview of common knowledge and are judicially noticed.

  1. Some documents are judicially noticed if they purport to be printed by the Federal Government Printing Press. Examples are:
    • Private Act of the National or State Assembly, official gazette of the federation and of the
    • Proclamations; and order in council.
  2. Other matters that may be judicially noticed include:
    • Official seals and signatures of superior Courts to judicial or official documents,
    • The signatures of ambassadors and consults to affidavit sworn before
    • The seals of the Federal Republic of Nigeria, Medical register, Law List, the Army List, the Clerical
    • The seal of the patent office and of the Nigeria notary

 

Illustration through cases

 

Look at some cases illustrating facts which judges have judicially noticed: Bakare v Ishola (1959).

During an altercation which preceded a fight, the defendant called the Plaintiff “Ole, Elewon, you are a thief, ex-convict; you have just come out of prison”. Held. It is a matter of common knowledge of which this court takes judicial notice that people commonly abuse each other as a prelude to a fight and call each other ole! Elewon (thief, ex-convict) which abuse no one takes seriously as they are words of anger, and are nothing but vulgar abuse”.

 

France Izedonwen V IGP

The accused, a police Officer was being accused of accepting a reward beyond his proper pay and emolument. (Section 99 Criminal Code). The court held that a judicial notice could be taken of the fact that the accused, a police officer, would receive proper pay and emolument under the Police Act.

Rotimi Williams v. West African Pilot (1961)

In an action for libel, contained in a newspaper, the court would take judicial notice that the newspaper is a national daily and that it exercises immense influence on its readers.

Examples of notorious facts of which court may take judicial notice:

It is a notorious fact which the judge may judicially notice that:

  • A postcard is an unclosed document, which can be read by anyone in the course of post.
  • Two weeks is too small a period for human gestation,
  • Goats, dogs, cats, camels are domestic animals,
  • Young boys are naturally playful,
  • A particular day was
  • Lagos – Ore or Abuja – Kaduna roads are Federal highways (Federal Highways) Declaration Order, No LN 101 of 1971).

A custom may be adopted if it can be judicially noticed. It is judicially noticed if it has been acted upon by a court of superior or coordinate jurisdiction in the same area to an extent, which justifies the court in assuming that the person or class of persons concerned in that

area, look upon the same as binding. See Sections 16 and 20 of the Evidence Act.

 

Facts of Which the Judge May Not Judicially Notice

The judge may take judicial notice of a custom if it is of such notoriety and has been so frequently followed by the court. But it may refuse to take judicial notice of a solitary instance of the application of a custom.

 

Other examples where the judge has refused to take judicial notice are:

 

 

  • Internal arrangements of a government department or of government departments or of government corporations (Mutete v NRC 1961)

 

  • The fact that the general Hospital is a public place (Cyril Arch V Cop (1959).

 

 

  • When certain elements go to constitute an offence, they must be strictly proved and the court cannot take judicial notice of such facts or act on its own private

 

Aguda has pointed out that Sec. 73 (1) of the Evidence Act 2004(now section 122, Evidence Act 2011) is not a full catalogue of what the judge can judicially notice. He has argued that section 73(2) (now section 122) allows the judge to take judicial notice of other facts which are not expressly listed.

In conclusion, Judicial notice refers to facts which a judge can be called upon to receive and to act upon either from his general knowledge of them or from enquiries to be made by himself for his own information from sources to which it is proper for him to refer. It is obligatory that the court takes judicial notice of the facts enumerated in section 122 (1) of the 2011 Evidence Act, while it exercises discretion in others.

 

Common knowledge e.g. meaning of words, the facts that rain falls or that cats are domestic animals are other examples of facts which courts may judicially notice. You also learnt of the provision of section 122 and you were invited to

consider whether or not the section is all inclusive and exhaustive.

 

Presumption of Ownership

  1. 143 E.A. provides that when question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. It should be noted that the word presumption is not used here but this section deals with one of the known presumptions under the Nigerian laws. This section presumes ownership on the person who possesses and therefore shifts the burden of proof on the person who asserts otherwise. See Ibrahim Dasibel v. Patrice Ishaya (1996) 1 NWLR (Pt. 426) 626 at 624. Mohammed JCA held:

 

By operation of S. 146 [now 143 E. A 2011] the respondent being in possession of the land in dispute is presumed to be the owner of the land. The onus of proving that the respondent was not the owner of the land has now shifted to the appellant

 

Presumption of Innocence

S.36 (5) 1999 Constitution provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proven guilty.  Hence, the burden is on the prosecution to prove the guilt of the accused and the standard of proof is to prove the guilt of the accused beyond reasonable doubt. Goni v State (1998) 7 NWLR (Pt.452) 79; Ibeziako v. COP (1964) NMLR 10; Aruna v State (1990) 6 NWLR 125.

 

Presumption of Sanity

By a  combined reading of S. 139 (3) (C), S. 141 of the Evidence Act and S. 27 criminal code, every person is presumed to be of sound mind and to have been of sound mind at any material time until the contrary is proved. This is also a presumption that the accused is fit to stand trial until the contrary is proved. See The Queen v. Ogor (1961) 1 All NLR 70

 

 

Presumption of Legitimacy

  1. 115 (3) of the Matrimonial Causes Act and Section 165 E.A provide for presumption of legitimacy of a child born during the continuance of a valid marriage between his mother and any man or within 280 days after dissolution of the marriage provided the mother remains unmarried as the legitimate child of that man. As long as a valid marriage subsists between a couple (man and woman) there is a presumption that any child conceived and born in the marriage is legitimate Elumeze v Elumeze (1969) 1 All NLR 311 at 317; Egunwoke v. Egunwoke& Ors (1966) 2 All NLR 1. This is a strong presumption that can only be rebutted in limited circumstances.  It is rebuttable where:

 

  1. The wife and her husband had no access to each other at any time when the child could have been begotten, regard being had to both the date of birth and the physical condition of the husband or
  2. That the circumstances of access, if any, was such as to render it highly improbable that sexual intercourse took place between them when it occurred. See Retired Major J.A. Ogbole v Private Clement Onah (1990) 1 NWLR (Pt.126), Megwalu v Megwalu (1994) 7 NWLR (Pt.359) 718

 

The presumption of legitimacy applies where the husband and wife are living apart at the material time. Etenfield v Ettenfield (1940) NLR P.96. In addition, the presumption applies even where the couple used contraceptives and the wife admitted to having committed adultery, Watson v. Watson (1933) 2 All ER 1073. Cotton v. Cotton (1954) 2 All E.R 105

However, where there is a judicial separation, the presumption is in favour of the fact that the parties obeyed the order of court and did not co-habit, so that, a child born during the duration of the order is legitimate.

 

Presumption of Marriage

S.166 E.A. provides for a presumption of the existence of a valid and subsisting marriage between two persons where evidence is given to the satisfaction of the court, of cohabitation as husband and wife by such man and woman. Where a man and woman cohabited and were treated as married by those who know them, there is a presumption that they were living together in consequence of a valid marriage unless the contrary is otherwise established by evidence.  See Re Sphered (1904) 1 Ch. 456

It is important to note that before the presumption can be invoked sexual intercourse must have taken place between the spouses. See Egunwoke v. Egunwoke& Ors (1966) 2 All NLR 1.

 

Presumption of death

 

  1. 164 (1) EA provides that a person is presumed dead if the person has not been heard of for 7 years by those who would have naturally heard of him. Those in the category of those that ought to have heard of him include his wife, children, parents, siblings, business associates etc. But note that there is no presumption as to the time of death. The burden of proving time of death will be on anyone that asserts it. If two persons died in the circumstances in which it is uncertain which survived the other, they are presumed to have died in other of seniority. The age in which they died shall not be presumed. Such age must be established by evidence. Funke v Cole (1930) 10 NLR 1

 

Presumption as to Official Gazettes, Newspapers, Journal, Acts of the National Assembly and other documents

  1. 148 E.A provides that the court shall presume the genuineness of the Official Gazettes of Nigeria or other country, Newspapers, Journal, resolution of and the Acts of the National Assembly and other documents. The documents do not have to be produced from proper custody before they can be presumed genuine. National Electoral Commission & 3 Ors v. Sunday Ogonda Woidi (1989) 2 NWLR (Pt. 104) p. 444 at 454

 

Presumption of genuineness of documents and recitals which is 20 years old

By virtue S. 162 E.A recitals, statements, facts, and parties contained in deeds, instruments, Acts of National Assembly and statutory declarations 20 years old or more would be presumed properly executed and genuine, though this is rebuttable. See Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325.

 

Presumption as to the genuineness of certified copies 

  1. 146 (1) E.A provides that the court shall presume every document purporting to be a certificate, certified copy or other document as genuine and the person that certified it as duly authorized to so do. Okafor v. Okafor & Ors (Supra)

 

 

Presumption of undue influence

 

Where there is a fiduciary or confidential relationship between the parties, the onus is on the dominant party that undue influence was not exerted.  In Burkett v Burkett Estate 2018 BCSC 320 the court set aside a transfer of land on the basis of resulting trust and undue influence. It was held “that the presumption of undue influence in gifts arises in circumstances where the relationship between the parties gives rise to the potential domination of one party by another, and once established that the potential for undue influence exists, the onus then shifts to the defendant to rebutt and show that the plaintiff entered into a transaction favoring the dominating party as a result of his own “free, full and informed thought.”

The rule for rebutting the presumption of undue influence arising from a confidential relationship only requires the grantee of a transaction to prove by clear, satisfactory, and convincing evidence that the grantee acted in good faith throughout the transaction and the grantor acted freely, intelligently, and voluntarily

 

 

Presumption of Negligence

The Claimant can raise a rebuttable presumption of negligence by the defendant in proving that the harm complained about would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations. In the case of Dehmel v. Smith[3] the plaintiff was injured while descending in an elevator from the seventh to the main floor of the Pfister Hotel. Before reaching the second floor the elevator suddenly dropped, descending into a pit or well approximately two feet below the main floor. The Court stated that the doctrine of res ipsa loquitur raised a presumption of negligence on the part of the operator of the hotel. In considering this presumption of negligence the Supreme Court said:

 

It is not intended by the above to question the rule that the burden of proof is upon the plaintiff in cases where the res ipsa loquitur doctrine applies. [Citations omitted.] In such cases, however, when the plaintiff proves facts that make the doctrine applicable, it devolves on the defendant to produce evidence to overcome the presumption of negligence. If he does so, the plaintiff must then produce evidence in refutation. But if he fails to do so, the plaintiff with aid of the presumption has lifted his burden. If the defendant’s evidence is not sufficient to overcome the presumption, the plaintiff need not offer evidence in refutation. Whether it is sufficient to do so may be for the court to determine “

Burden of Proof

The term “burden of proof” has two basic meanings. First, it relates to a burden or obligation of personating the court to enter judgment in favour of a particular person. i.e. legal or persuasive burden.  Secondly, it is used in the sense of the duty to introduce evidence in support or rebuttal of a specific issue.  This is known as evidential burden.  See sections 131(1) (2) and 132 of the Evidence Act 2011 respectively.

See Elemo v. Owolade (1968) NMLR 356, 359.

Burden of Proof in Civil Cases

Quite unlike criminal cases, where the burden of proof is doubted on the prosecution.  In civil cases the onus of proof is not fixed.  It is determined by rules of pleadings and substantive law.  As rightly observed by – –

In Adegoke v. Adibi (1992) S. M. W. L. R. not 242 p. 410 at 423.

“In civil cases, the onus at proof is not as fixed on the plaintiff as fixed on the prosecution in criminal cases.  In civil cases, where the general burden swifts in the sense of the – – establishing his cases lies on the plaintiff, such a burden is not static as in criminal cases not only will prescribe witnesses in which on the state of the pleadings the burden of proof lies on the defendant but also as the cases progresses it may become the duty at the defendant to call evidence in proof or rebuttal of some particular point which may arise in the case”.

Section 143 of Evidence Act states that where he question is whether any person is the owner of anything of which one is sworn to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.  The presumption has been witnessed with success on many land disputes’.  The effect of the presumption is that a person who is sworn to be in possession of a property is presumed to be the owner of the property until the contrary is proved by his opponent.

**The case of Lawal v. Ijale (1967) N.M.L.R. 156 is the authority for the view that in an action for declaration of title to Land, where there is admission in the pleadings that a party is in possession of the Land in dispute, section 143 places the burden of proving ownership on the person who asserts that the person found in possession is not the owner.

**See also C.O.P. v. Oguntayo (1993) 6 N.W.L.R. pg. 299 pg.259.  The Respondent as plaintiff had sued the appellants for detune/conversion in respect of a vehicle which he was in possession of prior to its being impounded by the Appellants.  Appellants had claimed that the vehicle belongs to a thirty party but did not adduce evidence on the identity of the third party.  Respondent had produced purchase receipt and vehicle license to prove his ownership of the vehicle.

It was held applying Section 143 of the Evidence Act, by the S/Court that once the respondent was shown to be in possession of the vehicle before it was impounded by the Police, he is presumed to be the owner.  The burden is on the appellants to demonstrate that Respondent lacked title and superior title was in another person.

In the words of Kutigi J.S.C. “The Law presumes that the respondent being the person in possession of the vehicle and (registered too in his name) was the owner until the contrary was proved (see evidence Act Sec 143) so that until the appellants were able to find the true owner, the respondent had a better right to possession of the vehicle than the appellants”.

Chime v. Chime (1995) 6 N.W.L.R. pt 404 P.734

The plaintiff/appellant had sued the respondents for declaratory rights to set aside the power of attorney and the assignment of the property in question.  The Respondents gave evidence and also filed a counter – claim.  The appellants’ neither testified nor called evidence in support of their claim.  Consequently their case was closed.  Addresses were delivered Judgement was given in favour of the Respondents.   Appellants claim was dismissed.

An appeal was filed by the Appellants contending that the trial Judge ought not to have dismissed prior case.

Held: That the Plaintiff/Appellants by failing to call evidence and not discharge the         required Burden of proof, case was rightly dismissed.

Achike J. C. A. “In our adjectival law, it is trite that any person who is desirous to obtain the jdugement at any court to any legal right or liability which is defendant on the existence facts which he asserts must prove that these facts exist and to that extent it is said that the burden of proof lies on that person see Section 13(1) & (2) of evidence Act.  In Civil cases the burden of proof proving the existence of facts which he asserts lies on the party against whom judgement of the court would be given if no evidence were produced on either side regard being had to any presumption that may arise in the pleadings.  See section 132 of the Evidence Act See Babalola V Rufus (2010) All FWLR pt515 p309.

As employer who dismisses his employee for incompetence has the burden of proving such incompetence on the part of the employee see Ogunsanmi v. C.F (W/A) Furniture (1961) W.N/L/R/ 327

According to the court” Incompetency is obvious a ground for summary dismissal (of a Servant) where a master has dismissed his servant summarily for lack of skill, the onus is of the master to prove to the satisfaction of the judge that his servant was incompetent

Animashaun V.U.C.H. (1996) N.W.L.R. at 476 is the authority for the view that where an employer makes demonstration the entitlement of the employee on the ground that the employee was indebted to the employer, the employer has the burden of establishing indebtedness.  The employer failed to discharge the burden of indebtedness.

Ideson v. Ordia (1997) 3 NWLR at 491.  The Plaintiff claimed damages and trespass to Land and injunction against the Deft.  The Deft counter-claimed for declaration of title to Land.

According to Adio J.S.C.

What is, however involved in the present case is far more than mere proof of possession of the Land at the time but trespass was committed on it.  Where a plaintiff claims damages for trespass and injunction and the defendant alleges that the Land belongs to him, the plaintiff in order to succeed, has to prove not only that he was in possession of the Land when the trespass was committed but also that his own title to the Land in dispute is better than that of the defendant.

See Amakor v. Obiefuna (1924) 3 Section 62.  This is because in the circumstance title to the Land in dispute is put in issue.  See Ogbechie v. Onochie (1988) 1 NWLR at 70. 370.  Therefore, in order to succeed, the appellants in this case had the burden of proving not only that they were in possession when the alleged trespass was committed by the Respondents but also that he own title to the Land in dispute was better than that of the Respondents”.

When an employee complains that his employment has been wrongfully terminated, he has the onus to place before the court, the terms of employment and the manner the terms were breached by the employer.  See Ime Udo-Osoh v. CBN (2010) 52 WRN 134. 157.

The case at Elias v. DISU 1962 1 AWNLR p.24 is the authority for the view that in cases where necessary consents appear to had been obtained to the sale of family property, the onus is on the person challenging the sale on ground of absence of consent to prove that no consent was obtained.

Adenle v. Oyegbade 1967 M.W.L.R. 136.

The Land in question as agreed between the parties was a family Land.  While the plaintiff family claimed that it was granted to the deft for a limited period, the Deft claimed that the property had been out rightly given to him Held – The onus was on the defendant to demonstrate how he acquired absolute grant in his favour.

STANDARD OF PROOF IN CIVIL CASES

This refers to the degree of persuasion or weight or degree to which proof must be established.  It is the quality of evidence which a party is supposed to attain in order to prove a case.

Basically there are two recognized standards of proof i.e. proof beyond reasonable doubt and proof on the preponderance of evidence or balance of probabilities.  Whilst the former standard generally applies to criminal cases, the latter generally applies to civil cases.  Nevertheless instances exist where the applicable standard of proof in criminal cases will be of the preponderance of evidence and proof beyond reasonable doubt is insisted upon in civil cases.

Many attempts have been made to define a reasonable doubt.  Some of these definitions have generated problems to courts.  The standard of proof is eminently a high one.   It however should not be confused with absolute certainty, or with scientific proof or proof beyond all shadow of doubt.  A useful guideline can be found in dictum of Denning L. (as he then was) in Miller v. Munster of persons (1942) 2 All ER. 372.  “The degree is well settled.  It need not in the realm of certainty, but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.  The court will fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.

If the evidence is so strong against a man as to have only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable, the case is proved beyond reasonable doubt, but  nothing short of that will suffice”.

In a trial with jury the proper direction is that the jury must be satisfied so that they feel so sure of the culpability of the accused.  Consequently where the totality of the evidence in a criminal trial is equivocal in the sense that it is consistent with both the guilt as well as the innocence of the accused, a verdict of acquittal should be recorded in his favour.  If on the whole of the evidence the court is left is a state of doubt, the onus is not discharged.  The prosecution must fail.  The standard of proof makes it incumbent on the prosecution to prove all the ingrients of the offence.

Bakare v. The State (1987) 1 NWLR pt.52 r 579 at 581 per Karibi whyte JSC.

It is fair to point out that in a prosecution the judge should be satisfied that the evidence before him is sufficient to establish the guilt of the accused.  This is because the judge who is unbiased umpire of trial can only determine the standard of proof required from a consideration of the evidence of the prosecution as against that of the accused.  In such a situation as in many others absolute certainty is clearly unattainable, hence proof beyond reasonable doubt has been taken to mean such degree of cogency which is consistent with and equivalent to a high degree of possibility.  It does not eliminate the possibility of any doubts whatsoever including remote possibilities.

According to Pat Acholonu J. SC Ibrahim v. The State (1995) 3 NWLR wart 381 at r 47

“The Law vests the responsibility to prove the accused guilt on the prosecution beyond all reasonable doubt.  It is not part of the system of our Law that the appellant and his co-accused should prove their innocence, proof of every               hypothesis except that which it tends to support and it is proof wholly consistent with the guilt of the accused and inconsistent with any other rational conclusion Thus, for evidence to warrant conviction, it must be beyond all reasonable doubt, every other hypothesis other than that of the accused guilt, the accused is entitled to an acquittal.

ALLEGATION OF CRIME IN CIVIL PROCEEDINGS

 

It is not uncommon that allegations are made in civil proceedings which bother on the commission of crime against a person. Section 135 (1) deals with the applicable standard of proof thus:

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

The above provision consequently insists that a party alleging that his adversary has committed a crime such as forgery had the burden of proving the same not merely on the balance of probabilities but beyond reasonable doubt.

 

See      Ahaneku v. Iheaturu. (1995) 2 NWLR pt 380 p. 258

Buhari v. Obasanjo (2005) 13 NWLR pt 941 p.1 at 209.

Farmuroti v. Ogbeke (1991) 5 NWLR pt 189 p.1

There was a Land absolute between the plaintiff/respondent and the Deft/Appellant.  Both parties traced their title to the same family.  The Appellant having lost at the High Court and Court of Appeal, contended at the supreme Court that judgement ought not to have been entered in favour of the Respondent because the conveyance upon which the ruling was made was not duly executed as it was forged.

Held that the onus was on the Appellant to prove forgery because he who alleges the commission of a crime was duty bound to prove it beyond reasonable doubt.

 

See also          Nwankwere v. Adewumi (1966) 1 All NLR 129

Nwobodo v. Onoh (1984) ISC p. 1

Fayemi v. Oni (2009) All FWLR pt 493 p.1254

 

H.M.S. (T) v. First Bank (1994) 1 NWLR pt 162 p.290 is the authority for the view that where a commission of crime is directly in issue the party alleging must prove it beyond reasonable doubt.

 

Legal Burden in Criminal Cases

 

With regard to criminal cases, the law is settled that the burden of proving the guilt of the accused lies on the prosecution.  See sections 135(2) and 139(2) of the Evidence Act 2011, Section 36(5) of the 1999 Constitution.  Note also section 36(11) of the 1999 Constitution.

 

The above provisions confirm that an accused person enjoys a presumption of innocence under our criminal justice system.  Therefore, it is the duty of the prosecution to prove the guilt of the accused and not for the accused to prove his innocence or disprove the commission of the alleged offence.

 

See    Woolmington v. DPP (1935) AC52

Areh v. COP (1959) WNLR 230

Odido v. State (1993)1 NWLR pt 369 88

Onuoha v. State (1995)1 NWLR pt 385 p.591

Martins v. State (1997)1 NWLR pt 481 p365

Ogunbanjo v.State (2002) 15 NWLR pt. 789 p.76

 

Evidential Burden in Criminal Cases

There are instances when the burden of providing some issues is foisted on the accused.  See section 135(3) Evidence Act 2011.

 

For example

  1. The burden is on the accused to prove any defence(s) he wish to raise at his trial. E.g. insanity. See Ansa v. The State (1988) 3 NWLR pt. 83 p. 386 at 400 or defences of provocation accident or self defence.

See also Okom Edoho v. State (2020).

 

  1. It is common for statutes to impose burden of proving particular fact on the accused. See Section 417 of the Criminal Code, Sections 145, 146 and 168 of the Custom and Excise Management Act.  See Chairman of Board of Customs & Excise v. Baye (1960) WNLR 178, IBIRI Board of Customs and Excise (1965) NMLR 35, see also Section 6(3) of the Recovery  of Public Authorities (Special Military Tribunal) Decree No. 2 of 1984, see Section 7 of the Road Traffic Act. Simi Johnson v. COP (1960) WRNLR 118.
  2. Where a fact is within the exclusive knowledge of the accused. Such accused has the burden of proving it.  See Section 140 of the Evidence Act 2011.

Otti v. IGP (1966) NNLR 56

Rahman v. COP (1973) NNLR 87

Akhidime v. State (1984) NSCC 588, Odu v. State (2000) 7 NWLR pt. 588 p.283

Note: that where a particular fact is within the knowledge of the accused and the prosecution, the burden of proving such fact is on the prosecution.

 

Standard of Proof in Criminal Cases

 

The standard is proof beyond reasonable doubt.  See Section 135 Evidence Act. As

to the meaning of “beyond reasonable doubt”.

 

See Lord Denning dictum in Milner v. Minister of Pensions (1947) 2 All ER 372, Ukwumenye v. State (1989) 4 NWLR pt. 114 p.131 at 156 per Oputa JSC. See also the following cases.

 

Bakare v. State (1987)1 NWLR pt. 52 p.579 at 581

Ibrahim v. State (1995) 3 NWLR pt. 381 p.47

            Aremu v. State (1991) 7 SCNJ pt. 11 p.296

 

Note the distinction between “proof beyond reasonable doubt” and “proof beyond shadow of doubt”.  See Akpabio v. State (1994) NWLR 358 at 600.

Note: that where the accused has any burden to discharge in a criminal case, the standard to be applied is civil standard i.e. balance of probabilities or preponderance of evidence.  See Section 137(1) of the Evidence Act 2011.

 

See      Guobadia v State (2004) 6 NWLR pt 869 p. 360.

 

 

CHARACTER EVIDENCE

Literally, ‘character’ signifies a reputation and a disposition. Section 77 of the Evidence Act 2011 has defined the concept of the word “Character” in relation to the Law of Evidence. It is defines it as “reputation” as distinguished from “disposition”.-

(b) Character evidence connotes evidence regarding someone’s personality traits; evidence of a person’s moral standing in a community based on reputation or opinion. It refers to one’s reputation – the esteem or otherwise, in which a person is held; the conviction based upon the person’s behaviour.

Character Evidence

According to the Black’s Law Dictionary, character evidence refers to the evidence of a person’s moral standing in community based on reputation. The admissibility of Character evidence in Nigeria Legal practise is set out under the sections 77-82 of the Evidence Act, 2011.

Character Distinguished

 

  • Reputation and Disposition: A reputation must be distinguished from a disposition. Disposition according to Oxford Advanced Learner’s Dictionary, is a person’s natural qualities of mind and character. It is the natural way of behaviour towards others. The Black’s Law Dictionary, 5th Edition in consideration of it with respect to mental state defines it as an attitude, prevailing tendency, or inclination. One may be of an evil disposition and yet be of good reputation. The converse is equally
  • Character and Conduct

 

You need also to distinguish character evidence from evidence of conduct or of behaviour. Conduct can be defined in relation to one’s action. According to Black’s Law Dictionary 5th edition, it means an action or omission and its accompanying state of mind, or where

 

relevant a series of acts and omission. Thus, in relation to character, conduct will be the action or inaction of an individual before the present fact.

Character evidence will be admissible for example evidence of previous convictions which are related in substance to the offence charged- Section 82 (4) (5 ). It applies in both civil and criminal proceedings (Evidence Act 2011, Sections 78-82).

  • Character evidence and similar facts

 

Similar facts evidence is defined in section 12 of the Evidence Act, which provides as follows:

 

When 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.

It has two connotations. (a) Facts having general resemblance and (b) Facts having particular resemblance

 

Facts having general resemblance. Illustration:

  • Fact situation one: A Stole, B murdered, C burgled. There is a general resemblance; each is a criminal; they are bad men or

 

 

  • Fact situation two: ‘C’ is charged with stealing; three years earlier, he committed house breaking. Here is a similar fact evidence showing in each case that A is a criminal.
  • Facts having particular resemblance Illustration:
    • Fact situation three: X is charged with obtaining N100,000 from Z by false pretence, that the ring is made of gold; some six months earlier, he had obtained N50,000 from Y by the same misrepresentation. Here also is a similar facts evidence showing that X is a bad man and a criminal whose particular modus operandi is obtaining money by false

Facts situations one and two show general resemblance. They are irrelevant, not admissible in evidence, against A or C. Fact situation three is of a particular resemblance – distinctive modus operandi – and is admissible against X.

It may be submitted that evidence of general resemblance or general evidence system is admissible only if apart from general resemblance, the Evidence Act allows it. But those

 

evidence which shows particular resemblance such that they fix the accused as the actor in each fact situation is relevant and admissible.

The purpose of this type of evidence system (evidence of similar fact) is to show that the accused is to be guilty of the offence currently charged by simply showing that he or she had been guilty of other misconduct than the one primarily charged.

You would have observed by now that similar facts evidence and an accused’s bad character reinforce each other or support the allegation made against the accused. Hence, evidence of bad character, which falls within the scope of similar facts evidence is relevant and admissible. Whenever evidence of bad character is relevant, evidence of previous conviction is also relevant. However, the general principle remains that:

The evidence of character of either party to a judicial proceeding is irrelevant and inadmissible and in a criminal proceeding the evidence of bad character (reputation) of the accused, or his previous conviction or previous acquittal is also irrelevant and inadmissible unless the Evidence Act or other statute so permits.

In this regard admissibility of evidence system in a criminal trial would be determined by asking, in each case whether the probative value of each evidence outweighs the prejudicial effect: DPP V P (1991).

In civil proceedings, such evidence is admissible wherever it is relevant to determine the matter in issue provided it would not be oppressive or unfair to the other side to do so. See Mood Music Publishing Co Ltd v De Walfe Publishing Ltd (1976).

 

Character of the Witnesses

 

The character of a witness is always relevant to his or her credit to show that he or she is a person of good character and worthy to be believed. The evidence of a witness’s character becomes relevant if he or she:

  • denies his or her previous conviction
  • has made inconsistent statements
  • denies bias in favour of one party
  • Where the reliability or credibility of a previous witness (e.g. medical evidence of abnormality of mind) may affect reliability of the witness’s

The character of a prosecutrix may be impeached in sexual offences, thus in a charge of Rape and similar offences, a party may adduce evidence of her reputation to show that she is a common prostitute.

 

The prosecutrix may be cross-examined as to acts of immorality with men, other than the accused, for purpose of impeaching her credit in such a case. But her denial is final and may not be contradicted any further.

  • Evidence of previous sexual relation with the accused during cross-examination may be received if “consent” is in

However, such cross examination for purpose of establishing consent is not to be regarded as an imputation on her character as to put in issue the character of the accused.

The prosecution may attack the character of a defence witness and such attack may go beyond contracting the evidence of his or her good character which the witness has given.

What Constitutes Evidence of Bad Character

 

The Evidence Act, section 82, provides instances where bad character e.g. of previous Conviction will be admissible. You may ask, what is the meaning of previous conviction in this context?

Look at the following cases.

 

  1. Stirland v DPP (1944) AC 315 : Here the court expressed the view that the word “charged” in the sense it bears in the statute means “previously being brought before a criminal Court” not just being suspected or
  2. R v Shrimptom: S was charged with larceny (theft), His character became an issue, Prosecution gave evidence of previous conviction. The court said that if the previous conviction had been for rape, it would not have been admissible because it would have been
  3. R v Winifield (1939): W was charged with indecent assault. The court admitted evidence of previous conviction for dishonesty. The court added that there is no such thing as putting half a prisoner’s character in issue and leaving the other one

When a Character Evidence becomes Relevant

 

What matters is not an individual opinion of the person; It is the opinion of the community.

 

X, a school teacher is accused of sexual harassment. Police investigates and charges him with indecent assault. The defence testifies as to the teacher’s good behaviour. The prosecution calls a witness in rebuttal in an answer to the accused’s moral standard, saying:

“I know nothing of the neighbourhood’s opinion because I was only a boy at school when I know him but my own opinion and that of my brothers who were his

 

principals is that his character is that of a man capable of the grossest indecency and the most flagrant immorality”. R v Rowton (1865)

A witness can only speak of the accused’s reputation, not of rumour, or suspicions which cannot be proved.

In a situation where a rumour affects a person’s reputation, Admissibility or non- admissibility may well depend on party’s pleadings.

 

Grounds for relevancy of Character Evidence

 

Evidence of character may be admitted in the following circumstances:

 

  1. where the question of character becomes relevant

 

  1. as evidence of similar facts to show system or design

 

  • to negative a plea of accident

 

  1. to know motive or intention

 

  1. if an accused has adduced evidence of his or her own good character

 

  1. Where statute specifically allows evidence of accused’s bad character or previous conviction(s).

Some of these situations apply to civil proceedings while others apply to criminal matters. Some of them also apply in both cases.

 

Evidence of Character in Civil Proceedings

 

In civil cases, evidence of the character of a party is irrelevant. It becomes admissible if it is otherwise relevant, as in the following examples

  1. Where the character of the claimant/Plaintiff is a fact in issue: See Ingram v Ingram (1956). This was a case of divorce based on adultery. The husband, who was a senior military officer was allowed to give evidence of treason against his spouse in proof of the fact that his spouse was guilty of weighty misconduct which is a constituent of cruelty.
  2. Where the character of the Plaintiff is relevant in assessing the quantum of damages e.g.
    1. Proceeding for breach of promise of marriage

 

  1. Petition for divorce founded on adultery with his or her spouse

 

  • In mitigation of damages in action of defamation Evidence of conviction is conclusive proof that the subject committed the offence in an action for libel or slander in which the question whether a person did or did not commit a criminal offence is relevant
  1. Evidence of bad character (i.e. general Reputation) of the Plaintiff is relevant in an action for defamation in which justification is pleaded and also to mitigate damages. In this regard the defence must first deliver particulars of the proposed evidence seven days before the trial or with leave of the
  1. In cross examination of witness as to credit: Evidence of previous conviction or of bad character of a party may be relevant where the party testifies on oath at the witness box and is being cross-examined as to credit. (See Evidence Act 2011 Sections 210- 213,179, 224 and 228).

 

 

Character of the Defendant

 

Normally, the fact that a defendant in a civil action is an ex-convict would not be admissible for the Plaintiff/Complainant. [See the case of HOLLINGTON V HEWTHORN AND CO LTD (1943) KB 587].

However, the moral character of the defendant is relevant, for example:

 

  1. to allegations of adultery in divorce proceedings

 

  1. in an action for breach of promise of marriage

 

See the case of Din v African Newspaper Ltd (1990) 3 NWLR 392 . This was a case of libel and evidence of bad character was held admissible since the parties have, in pleadings  joined issues on the good character of the Plaintiff.

Character Evidence in Criminal Cases

 

The accused occupies dual positions: He is a party (the accused). He is a competent witness for the defence. Both roles have different bearing on character evidence.

Accused’s Good Character

 

Common law and the Law of Evidence allow an accused to give evidence of his or her good character. This may be elicited either in  evidence  on  grounds  of  humanity,  in  examination –in-chief of a character witness or by the accused himself or in cross- examination of the witness by the prosecution. Evidence of opinions of specific person or evidence of specific acts by the accused is outside the  scope  of  character  evidence  (Section 8, Evidence Act, 2011).

 

When the evidence of good character may be admissible? Evidence of good character may be admissible if:

  1. it is relevant to the offence charged

 

  1. it refers to a date proximate to the charge

 

  • it is general, not relating to specific

 

 

In Stirland v DPP (1944) Accused was charged for forgery, he gave evidence of good character and official record and called a witness to depose that he had never been charged before. In rebuttal, the prosecutor sought to cross examine as to whether the employer had suspected or questioned the accused about a suspected forgery. It was Held inadmissible.

In Haruna and others v Police (1967) NRNLR 37, the applicant was charged with abatement of robbery. He called as a witness, a bank manager who said:

“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”

This was Held admissible as evidence of good character.

 

The character evidence must be of the specific type impeached. Thus if the offence involves dishonesty, or immorality, the question in issue becomes his or her character as to honesty or morality; character in other respects are immaterial.

Evidence of good character is a double edged weapon as it entitles the prosecution also to advance evidence of bad character, if any.

It has two important limbs

 

  • Its relevance to credibility

 

  • Its relevance to the question whether the accused/defendant was likely to have behaved as alleged by the

Where an accused faces multiple charges, pleads guilty to some and not guilty to others, he ceases to be of good character any longer.

4.7.2 Evidence of bad character

 

Evidence of bad character is irrelevant. See Section 81, Evidence Act, 2011). Such evidence cannot be adduced for the following reasons:

  1. It is irrelevant.

 

  1. It may unduly harass the

 

  1. c) It is

 

  1. It tends to rake up the whole of one’s career which one would not be prepared to defend without sufficient notice

There are, however, the following exceptions to the general rule that evidence of bad character, convictions and acquittals of the accused are inadmissible:

  1. Where the accused puts his or her character in issue by:

 

  1. Introducing evidence of his or her good character or

 

  1. Attacking the character of the prosecutor or his

 

For this purpose evidence of previous conviction is evidence of general reputation. Such imputation may be by personal testimony, or through a witness or advocate.

  1. Where statute permits, examples are:

 

  1. Evidence Act, section 180

 

  1. Criminal code 249-50 and 427 and,

 

  • Penal Code section 40. Some statutes have provisions for evidence of bad character e.g. official secret Act.
  1. Similar facts such as conduct in previous transactions. The purpose should be

 

  • to negate a plea of accident,

 

  • to show evidence system

 

  • to show

 

  1. Certain crimes, as defined in the statute creating them, allow character evidence. Example is loitering with intent to commit a
  2. Character evidence in form of previous conviction may be allowed:

 

  • to establish knowledge in case of receiving stolen property (evidence of Scienter).
  • when the penalty is to be enhanced for subsequent offences as in the case of persistent
  1. Upon a plea of autrefois convict or autrefois

 

  1. After verdict and in response to “Alloquitus” for purpose of determining appropriate sanction.

Note that an emphatic denial however strong is not a character impeachment and would not justify a rebuttal based on bad character or previous conviction. If the accused impeaches the character of the prosecution or his or her witness from the dock, he is protected. But when the accused makes such imputations and elects to go and goes into the witness box, he exposes him or herself to cross examination with regard to his or her bad character or previous conviction.

The judge has the discretion to disallow a cross-examination as to accused’s bad character or his or her previous conviction, where the prejudicial effect outweighs the probative value.

Where an accused has given evidence of his or her own good character, it is always open to the prosecution to give evidence in rebuttal but Lord Hershell’s dictum is instructive. He states:

“it is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from the criminal conduct or character to have committed the offence for which he is being tried.

“On the other hand, the mere fact than the evidence adduced tends to show the  commission of other crime does not render it inadmissible, if it be relevant to an issue before the (court) and it may be so relevant if it bears upon the question whether the act alleged to constitute the crime charged in the indictment was designed or accidental or to rebut a defence, which would otherwise be open to the defence” (MAKIN V. ATTORNEY- GENERAL FOR WAR SOUTH WALES (1894) AC 59 PC).

Evidence of bad reputation or a bad disposition is to be excluded only if it shows nothing more.

See the case of R V SIMS (1946) 1 KB 531. Here the Accused was charged with 10 counts for sodomy and gross indecency with A, C, H and E and with three boys and tried together. Considering sodomy as a crime of special category, a repetition of the acts with a specific feature connecting the accused with the crime and the interest of justice, the court held that the evidence of such acts was admissible in each case to show the nature of the act done by the accused.

Series of facts with same characteristics are unlikely to be produced by accident or inadvertence. After all, human nature has a propensity to repetition and as series of acts are likely to bear the same characteristics, while therefore one witness as to one act might be mistaken in identifying the accused, it is unlikely that a number of witnesses identifying the

 

same person in relation to a series of acts with the self-same characteristics would all be mistaken.

In HARRIS v DPP (1952) AC 694. Here the Appellant was at all material times on duty as a police constable in a market. He was indicted on 8 counts each of which alleged a breaking into the same office in the market and stealing between May and July. The evidence showed that most of the gates of the market were closed and on each occasion the thief had entered the office by the same method and stolen part of the money, the whole of which he could have stolen. Apart from the evidence of opportunity, there was no evidence to connect the appellant with 7 of the counts. With regard to the 8th count, the evidence shows that a burglar alarm had been planted on the premises unknown to the appellant, who was as usual, on duty in the market at the time.

Immediately after the alarm had sounded, some detectives, who had been lying in wait ran to the market and saw the appellant standing near the office. Although he was acquainted with the detectives, he nevertheless disappeared from sight for a short period long enough for him to hide the money, where it was later found.

The trial court acquitted him of the first 7 counts but convicted him on the last, which conviction was upheld by the court of criminal appeal. On further appeal, the House of Lords quashed the conviction on the ground that irrelevant evidence in the nature of the evidence of the earlier theft was wrongly admitted.

In BOARDMEN v DPP (1974) 3 ALL E R 887, the House of Lord held that in exceptional cases, evidence that an accused had been guilty of other offences will be admissible, if it shows that those other offences have with the offence in hand, common features of such an unusual nature and striking similarity that it would be an affront to common sense to assert that the similarity was explicable on the basis of coincidence.

The approach by Lord Goddard, CJ deserves mention. He said, (R v SIMS 1946 as above)

 

“If one starts with the assumption that all evidence tending to show a disposition towards a particular crime must be excluded unless justified, then the justification of evidence of this kind is that it tends to rebut a defence otherwise open to the accused. But if one starts with the general proposition that all evidence that is logically probative is admissible unless excluded, then evidence of this kind does not have to seek a justification but is admissible irrespective of the issues raised by the defence and we think is the correct view’’.

The Judicial Committee of the Privy Council criticized this approach saying that the judge ought to consider whether such evidence proposed to be adduced:

Is sufficient and substantial having regard to the purpose to which it is professedly directed to make it desirable in the interest of justice that it should be admitted.

 

In so far as the purpose is concerned, it can, in the circumstance of the case, have only trifling weight, the judge will be right to reject it; … but cases may occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge (per Lord Parque).

The judge has the discretion to admit the type of evidence if he is satisfied that:

 

  • Its probative force in relation to an issues in the trial outweighs its prejudicial effect and
  • There was no possibility of collaboration between the

 

OPINION EVIDENCE

Definition of Opinion Evidence

 

Opinion Evidence or Testimony as the Black’s Law Dictionary 5th Edition put it means the evidence of what the witness thinks, believes, or infers in regard to facts in dispute, as distinguished from his personal knowledge of the facts themselves.

It has been asserted that generally, the rules of evidence ordinarily do not permit a witness to testify as to opinions or conclusions except in certain circumstances and these are the exceptions to the general rule. One of such situation is the calling of ‘’Expert Witness’’.

Expert witnesses are those who by virtue of their education and experience have become knowledgeable [expert] and authority in their area of profession, calling or vocation whether it is in the field of art, humanities or science.

Fundamental Principle of Witness Evidence

 

The purpose of calling a witness is to elicit from him or her evidence of facts which he or she has perceived by means of his or her senses. That is to say; What he or she saw with the eyes; What he or she tasted with the tongue.; How he or she felt; What he or she heard with the ears and What he or she smelt with the nose.

Opinion evidence is neither of the above. Rather it as an inference drawn from facts. But this is a function of the judge not of a witness – to make inference from or interpret facts in order to arrive at a verdict. Hence, generally a witness is not allowed to engage in inference

  • drawing which is a judicial function or to testify about opinion rather than about

 

However, there are cases where the judge lacks the necessary experience to draw competently, appropriate inference from the facts that emerge from the proceeding. The court then allows someone with necessary expertise to do so. The purpose is to avail the court with experts opinion about facts to assist it in reaching a correct verdict.

An expert opinion may be received, therefore in evidence if it relates to a technical or scientific matter in which the competency to form an opinion cannot be acquired except by  a course of special study or experience. Arts, science, trade, handwriting, banking or foreign law confers such competence through a special course of study. Should any question of competency in any of these fields arise, an expert testimony expressing his or her reasoned

 

opinion is admissible. Otherwise such evidence is inadmissible. The reasons for exclusion of opinion evidence are that, it is:

  • not a technical and not a scientific matter
  • not susceptible to empirical proof or disproof
  • a usurpation of the functions of the judge,
  • being an inference drawn from an interpretation
  • formed from  materials  that  would  normally be excluded     from under the hearsay

The exclusion of opinion evidence has been criticized on the ground that it is capable of depriving the court of most valuable testimony. Critics argue that opinion evidence ought to be admissible, leaving the judge in each case, to decide what weight to attach to it.

 

 

Expert Opinion

 

An expert may be required to give evidence of:

 

  1. A fact or facts which he perceived with one of his or her five senses,

 

  1. His or her opinion on a matter in which the court considers him or her an expert.

The first is direct evidence. In this sense the expert is an ordinary witness to which no special rules apply.

The second is scientific or technical – a matter which involves knowledge of a technicality – like handwriting, foreign law etc. In this case of opinion evidence, special rules apply.

 

The test of admissibility of expert evidence of opinion:

 

The admissibility of expert opinion depends on the following:

 

  • The court’s competence to determine the matter without assistance

 

  • The qualification of the expert – whether he or she is a member of a profession; his/her formal qualifications – doctor, engineer, pathologist, chemist, etc?

 

Formal qualification is important but it is not a condition precedent. For example, a solicitor may qualify as a handwriting expert if it was his hobby to study handwriting. Non-expert opinion is frequently accepted e.g. in areas of identification or value. In R.V. Davies (1967), the accused was charged with driving a motor vehicle while intoxicated, he was unfit to drive. A non-expert witness was called to give evidence as to his drunken state or condition and he spoke as to the opinion he formed of the condition of the accused. The court, in regard to the non-expert witness, expressed the following opinion:

  1. That the non-expert witness might state his opinion, whether the accused had taken liquor or not , but must give the facts upon which he relied in forming his opinion,
  2. Not being an expert, he was not entitled to say whether the accused was fit or unfit to drive the vehicle. That was a matter for the trial court to decide, not the opinion of non- experts or ordinary
  • The opinion of person other than experts may be admissible in regard to the state or condition of a person or thing, other than his/her mental condition. Examples are:-
    1. Where a fact in issue is the opinion of a person e.g. opinion of another of libel, who pleads fair comment or the opinion of a witness to whom a false pretence was addressed or the opinion of a person defrauded that what the fraudster said was
    2. Personal opinion or belief about facts in issue which is based on grounds of experience. Such evidence has been admissible to prove identity, handwriting, age, insanity, intoxication etc. It has even been used to prove the speed of a vehicle, the value of articles and the affection between persons, where more direct  and  positive  evidence are not
    3. In interlocutory proceedings, a deponent may state his opinion and the ground of its

Competency of an expert or specialist

 

The Evidence Act does not give us any guideline on how to identify an expert with any degree of certainty.

An expert is a person especially skilled in the field of foreign law, native law and Custom, of science or art, handwriting and finger print analysis. His or her competency is for the judge to decide. Whether or not he or she acquired knowledge professionally goes to weight not admissibility. The test of an experts’ relevance is whether he is specially skilled on the particular field in question.

[

 

When called as an expert witness, you must first state your qualification, experience, training, nature and duty or your office relative to your field so as to satisfy the court that you are an expert on the subject in which you are about to testify as well as justify the reception of your evidence as relevant evidence.

It has to be noted, however that not only the general nature but also the precise character of the question upon which the expert evidence is required, have to be taken into account when deciding whether the qualifications of a person entitles him to be regarded as a competent expert: Ajani v the Comptroller of Customs (1954).

The credit or knowledge of the expert can be impeached by such evidence as bias or inconsistent opinions. An expert cannot form an opinion based on materials which are not before the court nor give opinion as to the legal or general merits of a case, except the expert is so asked. Such a situation arises where he or she is also a witness of the relevant facts and the issue in substantially one of science or skill.

As an expert, you may refer to textbooks and refresh your memory, correct or confirm your opinion and may be cross – examined.

 

Statutory Provisions under The Evidence Act 2011.

 

Section 68

 

  • When the court has to form an opinion upon a point of foreign law, native law or custom or a science or art or as to identity of handwriting or finger print impressions, the opinions upon that point of persons especially skilled in such foreign law, customary law or custom, or science or art or in questions as to identify of handwriting or finger impressions are =
  • Persons so specially skilled as mentioned in sub-section (1) of this section are called experts.

 

Section 67

 

The fact that any person is of the opinion that a fact in issue or relevant to the issue does or does not exist is irrelevant to the existence of such a fact, except as provided in section 68 to 76 of the Act.

Exceptions

 

Although the basic principle is that a witness should testify about facts, experts may be allowed to give evidence of:

 

 

  1. Facts which themselves require to be proved by admissible

 

  1. Opinion based on the facts of the particular

 

Before giving opinion evidence in a trial proceeding, the expert must first lay a foundation. The foundation refers to the ground or reasoning upon which the opinion is founded.

The court will dispense with expert evidence where it is capable of forming its opinion as the expert e.g. Disputed points of etiquette or morality, not being professional etiquette or morality. The court sitting with Assessors as in admiralty cases which involve questions of nautical skills is just as capable of forming the opinion as an expert.

  1. Experts may refer to information relating to their field of expertise that has come to them as a second hand (this rule is an exception to the hearsay rule)
  2. When giving evidence as an expert, you may refer to articles, journals, and other materials (published or unpublished) in support of your

Look at some illustrations or circumstances when the courts have received opinion evidence from persons skilled but are non-professionals.

(a) Foreign law

 

AJANI V THE CONTROLLER OF CUSTOMS (1952) 14 WACA 39, the Judicial Committee of the Privy Council (JCPC) held that a banker was “specially skilled” to give opinions as to foreign law based on his experiences, position or status and duties relative to the subject matter.

BAILEY V RHODESIA CONSOLIDATED LTD (1910), a Reader in Roman – Dutch law of the Council of Legal Education was held to be an expert in Roman Dutch law.

(b). Native law and Customs

 

Customary law is the mirror of accepted usage. It is “the dynamic or living law of the indigenous people regulating their lives and transaction. It is organic in that it is not static. It is regulatory in that it controls the lives and transaction of the community subject to it. Customary law probably goes further and import justice to the lives of all those subject to it”. OKONKWO V. OKAGBUA (1994).

It is settled law that except where a rule of customary law has received judicial recognition, such rule is treated for purposes of proof as a matter of fact ADEGBOYEGA V. IGBINOSU (1969) I ALL NLR 1. Where the customary law is not judicially noticed, it may be proved by testimony, in court, of a witness acquainted with the particular law. Thus “in deciding questions of native law and custom, the opinions of native chiefs or other persons having special knowledge of the native law and custom and any book or manuscript recognised by

 

the natives as a legal authority are relevant. Examples of such books, which judges have consulted, are:

  • Ajisafe: Laws and Customs of the Yoruba

 

  • Folarin: The Laws and Customs of Egba Land (See ADESEYE & ORS. V TAIWO (1956) 14 WACA 84)

 

  • Ward Price: Memorandun of Land Tenure in Yoruba Province (ADEDIBU V ADEWOYIN & ANOR. (1951) 13 WACA 191)

 

Part of these books were written by persons of Yoruba origin and received  in support  of  the existence of certain Yoruba customs by the Supreme court in ADESEYE V. TAIWO AND SUBERU V. SUNMONU

The Evidence Act section 68 is not exhaustive of areas where an expert opinion may be sought. In SEISMOGRAPH SERVICES LTD V. OGBENI (1976)4 SC 85. P sued for nuisance and damage to his house from D’s exploration exercise. P called for an expert to testify that the damage was caused by the vibration from seismic operation. The trial Judge rejected it, saying the court was capable of making the relevant inference without resort to experts. On appeal, the Supreme Court said.

“We are unable to agree with the learned trial judge that the evidence of an expert is not absolutely necessary to prove damage alleged to be caused by the vibration radiating from seismic operations taking place within a reasonable distance from the property damaged. These are phenomena beyond the knowledge of the unscientific and untrained in  seismology and civil engineering”, (Per Obaseki, JSC).

Other Instances of Opinion Evidence

 

There have been other specific subjects of expert evidence, namely:

 

  1. Evidence as to identity

 

  1. Handwriting

 

  • Other cases

 

Evidence of Identification

 

Evidence as to the identification of a person or a thing is an expression of opinion. Examples are evidence of:

  • a person’s general resemblance to a photograph or a member of and identification parade.
  • memory of goods stolen in comparison with actual goods

 

  • the age of a

 

  • Condition of a person or

 

You can give evidence as to the identification in appropriate cases as an expert or non- expert.

Handwriting

 

Handwriting includes type-writing. When hand writing or type-writing is in dispute, a handwriting expert may compare a document proved to have been written by the person whose handwriting it is sought with the document in dispute. After carrying out such a comparison, the hand-writing expert may be called to give his or her opinion.

Sometimes, the court may ask the person whose handwriting is disputed to write in the presence of the court and the court may form its opinion with or without expert guidance.

Sometimes, the witness need not be a specialist or an expert in handwriting analysis. It suffices that he or she is one who:

  • forms an opinion based on mental comparison,
  • sees or has seen the person (whose handwriting it is sought to compare) write on the particular occasions or
  • is conversant with his or her writing having seen letters assumed to be in his or her writing or
  • having read some document purportedly written by the person whose handwriting is in dispute.
  • is skilled or has given consideration attention and study to the subject. The courts have received opinion or expert evidences of handwriting from:
    • Police officer V. ONITIRI (1946) 12 WACA 58.

 

  • (Solicitor who studied finger print for 10years V. SILVERLOCK (1894) 2 QB 766.

 

  • Handwriting analysts who are trained specialists in the

 

  • Persons who are skilled in finger print impression

 

 

 

Others

 

The court may also admit evidence opinion in other exceptional cases. Examples are opinion evidence of:

 

  • general reputation

 

  • ones belief truthfully of what the accused said

 

  • speed of a motor car

 

  • Evidence of General Reputation and Opinion

 

Evidence of general reputation and opinion is irrelevant and generally not admissible. The reasons may be that:

  • It is excluded by the hearsay rule (e.g. Evidence of a general reputation in a community)

 

  • It is the function of the court, not of witness, to draw a conclusion from the facts proved. However, the court may admit it in the following exceptional cases
    • To prove marriage (other than bigamy or divorce cases)

 

  • To prove character

 

  • To prove evidence of public right

 

  • to support a branch of a family tree in pedigree cases

 

  • To prove identity (e.g. identity of a legatee)

 

Illustration

 

Jonah and Rebecca lived together for 4 years in Suleja. Their friends and neighbours believed that they are husband and wife. Rebecca has died. Jonah married Ms Titi. Much later, Jonah dies intestate.

The question for determination is who is or who are entitled to inherit.

 

There is no evidence that Jonah and Rebecca ever married. No marriage certificate, either. But they had four children while they lived together and their birth certificates showed that their parents – Jonah and Rebecca – were husband and wife.

If Jonah and Rebecca were not married, then the four children are illegitimate and cannot inherit. If they were, then the children would. The important question to be decided is whether Jonah and Rebecca were paramour lovers or husband and wife. In proof of this, there is no direct evidence but only evidence of friends and neighbour. Is this evidence receivable? Is there sufficient evidence upon which to assume that Jonah and Rebecca were married to each other?

 

The answer to both questions is YES, unless the contrary was clearly proved. Thus the rules of intestate succession, would apply as though Jonah and Rebecca had been duly married, Jonah having died without a Will. In case of divorce, however, marriage is not to  be assumed. It has to be strictly proved.

Although the evidence of general reputation is generally excluded and may in appropriate case be admissible to prove marriage, the court may refuse to admit the fact of cohabitation to found a presumption of marriage in the following cases.

  • charge of Bigamy

 

  • case of matrimonial proceedings e.g. divorce

 

In this type of case, the fact of marriage must be strictly proved.

 

Expert Opinion

 

An expert opinion is evidence about a scientific, technical, or professional issue given by a person qualified to testify because of familiarity with the subject or special training in the field.

Experts must be skilled in their subject; it is immaterial how the skill is acquired. You may not, as a witness, be specially qualified; yet you may be an expert for a particular purpose. An example would be where you have a special knowledge acquired by study of materials that are relevant to a particular case.

The court would consider your qualifications, experience and nature of duties in order to determine your suitability as expert. The court is at liberty to declare that a certain area of knowledge (e.g. psychological autopsy of a deceased person) is insufficiently developed to be a topic on which expert evidence will be admissible.

 

New Dimensions of Matters of Science and Art

 

Matters of science and arts permit opinion of experts. The expression “science and arts” has been expanded beyond the well-established disciplines and fields of knowledge under the two heads. It covers almost any matter, which is the subject of special knowledge. The expansion of the scope is occasioned by the advancement in science and technology outside the knowledge of judges e.g. blurred boundary between the abnormal and the normal mental states. Thus, a medical witness may give evidence of conduct indicative of insanity. If he has had the accused under observation, he may state as an “expert” that his opinion is that the accused is sane or insane. But he must not be asked whether or not the Accused is insane.

 

Psychiatrists and Psychologists: Persons so especially skilled are experts Sec 68(2) Evidence Act 2011.

The English courts have shown a readiness to receive psychiatrist or psychologist expert as to:

  1. reliability of a confession (Ragship and others, (1991); Walker (1998) and O.Brian (2000 )these are foreign matters the Nigerian courts are unlikely to hold under Evidence Act 2011
  2. the defect or  abnormalities  of  mind  to  impeach  the  credibility  of  the  witness  or witnesses or show that the patient is incapable of giving reliable

At the same time, the court has been reluctant to allow expert opinion as to:

 

  1. Mens rea – its existence or non-existence RV TURNER (1975) Q B 834. COMPARE LOWERY V QUEEN (1974)
  2. Truthfulness of a witness or evidence MACKNANNEY V PINFIELD (1981), BROWNING (1995)

 

  1. Ultimate Issue: ultimate issue is for the judge to decide and pronounce a verdict and expert opinion is irrelevant. Sometimes the judge allows it. Theodosi (1993); Stockwell (1993). These decisions are guides only and for purpose of argument bearing in mind the doctrine of judicial

 

Foreign Law

 

Expert opinion as to foreign law may be given by a person, who in his/her profession is acquainted with such law.

Customary law and Custom

 

The traditional rulers, chiefs, or other person having special knowledge of the Customary law and custom may testify as experts. The opinions are respected as those of experts and are admissible.

Furthermore matters of Customary law and Customs may be proved by reference to any book or manuscripts, which the indigenous people in the locality recognize as a legal authority.

 

Facts bearing on Expert Opinion

 

When opinion evidence is admitted in evidence, facts which may otherwise be irrelevant become relevant and admissible of the support or are inconsistent with the  experts  opinion.

 

So far you have dealt with opinions of experts. There are occasions when opinions of non- experts are relevant to these, we may now turn;

 

  • Opinion of non-experts Section 72

 

The opinion of non-experts may be admitted in proof of:

 

 

Opinion as to a handwriting may be given by a person who is acquainted with the handwriting or a signature of its author.

  • Existence of general custom or right, including customs or rights common to any considerable class of persons.(section 73)

The Court would receive the opinion of non-expert who would be likely to know of the existed if it existed.

  • Usages and tenets Section 74 – A non-expert opinion may be received as to:

 

  1. usages and tenets of anybody of men or family

 

  1. the constitution and government of any religious of charitable foundation

 

  • the meaning of words or terms used in a particular  district  or particular  class of

Non-expert opinion; it must be shown that the witness has special means of knowledge to the satisfaction of the court on the matter specified in (c) (i-iii) above.

  • Relationship of one person to another: Section 75

 

A member of the family or other person who has special means of knowledge on the subject may volunteer opinion expressed by conduct.

A non-expert opinion is irrelevant as to marriage in cases of

 

  • divorces or petition for

 

  • petition for damages against adulterer

 

  • Bigamy

 

SIMILAR FACT EVIDENCE

Similar Fact Evidence under Common Law

th

Prior to the 19    Century, similar fact evidence was excluded unless it had a particular

 

function. In the 19th Century, the reverse situation  prevailed  and  similar  fact evidence becomes, prima facie, admissible unless it  showed  only  propensity.  In  1894, exclusionary rule was restored and fact was confirmed by the Privy Council in  the case of MakinvAttorneyGeneralofNewSouthWales (1894) A C 59 at 65. This is a case in which a  husband and his wife were charged for murdering a baby  and during investigation the remains of the baby and that of three other babies were found buried in the garden at the back of the house of the Makins. Further investigation revealed the remains of seven other babies were found in the yard of the house where the  Makins once lived. Considering all these evidence, the  Privy Council accepted them as evidence on the ground that they showed that the accused persons had deliberately killed the baby in question. In his judgement, Lord Herschel stated the common law rule on similar fact as follows:

It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purposes of leading to the conclusion that the accused is a person likely from his criminal conduct or character, to  have  committed the offence for which he is being tried. On the  other  hand,  the mere fact that the evidence adduced tends to show the   commission of other crime does not render it inadmissible if it be relevant to an issue before the jury: and it may be so relevant if it bears upon the question whether the  acts  alleged  to  constitute the crime charged in the indictment were designed or  accidental,  or to rebut a defence which would otherwise be opened to the accused

The position above stated was also upheld in the case of R.vSims (1946)1 K B 531. This case involves a charge of the offence of sodomy and gross indecency of the accused with four men. The Court held that the evidence of each accuser was admissible.

 

But it is worthy of note that the position in the criminal case of R.v Sims (1946)1 K B 531 was reverted three years later in the case of Noor Mohammed v R (1949) AC 182 where the Privy Council held that evidence of previous similar acts were wrongly admitted in evidence and the conviction of the accused person was quashed.

 

Notwithstanding the position held in the case of Noor Mohammed v R (1949) AC 182 above, the principle laid down by Lord Herschel in Makin’s case was later affirmed by the House of Lords in the case of  Harris v DPP (1952) AC 694  though the appeal of   the appellant was successful.

 

Noteworthy is the case of Boardman v Director of Public Prosecutions [1974] 3 All E. R. 887, where the House of Lords held that evidence of similar offence will be admissible in an exceptional situation where it shows that those other offences share with the offence charged common features of such an unusual nature and striking similarity that it would be an affront to common sense to assert that the similarity    was explicable on the basis of coincidence. The case stated that in admitting such evidence the judge should exercise his discretion to admit the evidence only on the satisfaction of the following:

 

  • That its probative force in relation to an issue in the trial outweighs the prejudicial effect, and

 

  • That there was no possibility of collaboration between the

Common Law Rule of Similar Fact Evidence in Nigeria

Prior to the advent of the Evidence Act in Nigeria, the common law rule of similar evidence as upheld in the case of Makin were made applicable in some Nigerian cases, prominent among which is the case of R v Adeniji [1937] 3 WACA 185. In this case the appellant was charged with the offence of being in possession of moulds for minting coins under the Criminal Code. The Court held that the evidence of previous uttering of counterfeit coins by him was admissible in order to establish guilty knowledge.

 

Also in the case of Akerele v R [1943] A.C. 255, a similar position as in the above case was maintained. In this case the appellant a Medical Practitioner gave injections of mixtures to a number of children among who is the deceased who died as a result of the injection given by the appellant. At the trial the court held that the evidence of the fact that other children died as a result of the injection given to them by the accused at the same time and from the same mixture was held admissible.

It is noteworthy that such decisions as above would have been reached even after the advent of the Evidence Act because, it tends to look like the position in the case of Makin as examined above, has become adopted in our Evidence Act, particularly in Section 17 of the Evidence Act 1990 which is now Section 12 of the Evidence Act 2011 and it provides as follows:

When 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.

The material content of the above provision has a very close resemblance to the Common Law principle on Similar Evidence as given by Lord Herschel. This position stipulates that similar fact evidence will only be admissible if it is relevant to the issue whether the acts alleged to constitute the offence charged were designed or accidental.

Take note that notwithstanding the admissibility of similar fact evidence  under section 12 of the Evidence Act 2011, this provision is not applicable automatically, as the Court has power to exclude or  jettis on  such evidence if  it is considered evidence prejudicial to the fair trial of the accused.

The provisions of Section 12 of the Evidence Act 2011 has been subjected to several argument as regards its concept implication which is believed to be devoid of the real principle contained in the MAKIN’s case which allows the evidence of similar facts ‘’to rebut a defence which would otherwise be  open  to an accused person’’. It has been confirmed in response  to  the  argument that there are no reported authorities t o the contrary in Nigeria. It has also been asserted that notwithstanding the fact that Section 12 of the Evidence

 

Act 2011 is devoid of the direct provision of the common  law  rule  which  allows the evidence of similar facts ‘’to rebut a defence which would  otherwise be open to an accused person’’, such provisions can be read into when considered along with the provision of Section 5 of  the  Evidence Act 1990 which allows the admissibility of evidence which apart from  the  Act would be admissible.

 

A closer look at the Evidence Act 2011 tends to show a technical content departure from the above position as the  provision of Section 5 of  the Evidence 1990 is no longer retained in its entirety in the Evidence Act 2011 which has altered the position that nothing will prejudice the admissibility of any evidence which apart from the provision of the Act be admissible. The Evidence Act 2011 now subjects the admissibility of any evidence other than  the one provided in the  Act  only to  those contained in  any other legisla tion  in Nigeria. See Section 3 Evidence Act 2011, it provides thus;

Nothing in this Act shall prejudice the  admissibility of  any evidence that is made  admissible  by  any  other legislation validly in force in Nigeria.

It is noteworthy, that by the application of the principle of Stare Decisis, any case in which our  courts have made pronouncements using the MAKIN’s case  as a bench mark will  make the  same  position as  applied under Section 5  of the Evidence Act 1990 to be applicable under Section 3 of the Evid ence Act 2011, because judges decisions are also part of the Nigerian Legislation.

 

On Similar Facts evidence, it is very important for you to know that for an evidence of previous act to be given to sustain a charge, the defence of the accused must not be an outright denial of the offence charged and such evidence must be very connected to the acts of the accused . See the case of Al-Hassan v Commissioner of Police [1944] 10 WACA  238 .  Here  the  Court held that the evidence of previous extortion of bribes fro m other persons is inadmissible on the ground that the evidence  has  no  bearing  with  the present charge.

 

 

Similar Facts evidence is applicable to both civil and criminal cases alike. Evidence of similar facts can be  adduced in  civil cases. See  the  case of  Hales  v Ker [1908] 2 KB 601 . Here the Plaintiff sued the Defendant who  is  a  barber for negligence in shaving him with an  unsterilized  razor  thereby  infecting him with ringworm. Evidence that the  other  persons  shaved  by  the Defendant had contacted the same infection was held admissible.

 

In an action for negligence for performing a surgical operation carelessly evidence that in other such operation, he had been negligent or skilful is inadmissible.

See also the case of Hollingham v Head (1858). Here the issue was whether plaintiff contracted with the defendant subject to special terms. Evidence sought to be adduced was the fact of similar contracts  with  other  persons,  subject  to  these  special  terms. This was held inadmissible; the fact that a man (or a woman) has once or more in his life acted in a particular way does not make it probable that he or she so acted on a given occasion.

 

Suppose P made the same contract D, Y, Z. The claim would probably have succeeded.

The General Rule

The general rule specifies the facts of which evidence may be given and it has its root in the Common law rule as examined and explained above. The Evidence Act stipulates that evidence may be given facts in issue and relevant facts and “of no others”.

The court, in exercise of its discretion may exclude an otherwise relevant fact, if it considers;

  • That the prejudicial tendency outweighs its probative value
  • Evidence is obtained illegally or by some tricks
  • Strict rules of admissibility would operate unfairly against an accused

 

 

Similar Facts under the Law of Evidence

  1. Section 1 Evidence Act 2011: Evidence may be given of facts in issue and relevant facts. The Act provides as follows:

Evidence may be given in any suit or proceeding of the existence or non- existence of every fact in issue and of such other facts as declared to be relevant and of no others.

  1. Section 12 Evidence Act 2011: Facts bearing on questions whether act was accidental or intentional. The Act provides as follows:

When  there  is  a  question  whether  an  act  was  accidental   or  done  with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences in each of which the person doing he act was concerned, is relevant.

  1. Section 35 Evidence Act 2011: Acts of Possession and Enjoyment of Land. The Act provides as follows:

Acts of possession and enjoyment of land may be evidence of ownership or of a right or occupancy not only of the particular piece or quantity of land with

 

reference to which such acts are done, but also of other land so situated or connected with it by locality or similarly that what is true as to the one piece of land is likely to be true of the other piece of land.

See the case of Okechukwu and Others v Okafor and Others [1961] All NLR 685. Here the court held that the acts of possession and enjoyment of lands adjoining the disputed one was enough to support their claim of title to that one by virtue of the section

 

  1. Section 36(1) Evidence Act Evidence of Scienter for receiving stolen property The Act provides as follows:
    • Whenever any person is being proceeded against for receiving any property, knowing it to have been stolen or for having in his possession stolen property, for the purpose of proving guilty knowledge, there may be given in evidence at any stage of the proceeding-
      • the fact that other property stolen within the period of 12 months preceding the date of the offence charged was found or had been in his possession: and
      • the fact that within the 5 years preceding the date of the offence charged he was convicted of any offence involving fraud or

The Law here allows the giving of evidence to be given at any stage of the proceeding  of establishing the guilty knowledge of a person charged or being tried for the offence of receiving stolen property or being in possession of stolen property, knowing it to have been stolen. Take note that the only ground for which such evidence is made admissible is for the purpose of proving the guilty knowledge of the accused, and this therefore implies the facts of receiving the goods to which the charge relates must be proved. Thus, it must be proved that the accused received the goods the subject of the charge before introducing evidence of other instances when the accused had received stolen goods within the last twelve months or conviction for fraud or dishonesty in the past five years.

Before the evidence as above mentioned can be admissible, the accused person must be on trial not for stealing or other offence but for receiving or being in possession of stolen property. see the case of Odutade v Police [1952] 20 NLR 81, in this case, the appellant was charged with others with stealing and receiving stolen property, but by himself being with being a rogue and a vagabond. Evidence of convictions over ten

 

years old was given against him. He was acquitted on the vagrancy charge but convicted of receiving. On appeal, it was argued that the previous convictions were put in for the vagrancy charge and not for receiving within Section 46(b) of the Act [which is 47(2) of 1990 EA]. It was held that Section 46 (1) (b) was inapplicable and that the appellant did not have a fair trial.

It is also worthy of note that there are conditions for proving SCIENTER and such conditions include:

  • Giving of seven days’ notice in writing to the Defendant that proof of previous conviction is intended to be given and
  • A proof by evidence that the property which is the subject of the matter of which the accused is being tried was found in his possession or has been in his possession.

Whenever any person is being proceeded against for receiving any property, knowing I to have been stolen or for having in his possession stolen property  for the purpose of proving  guilty  knowledge  there  may  be  given  in  evidence   at any stage of the proceedings:

  • The fact that other property stolen within the period of twelve months proceedings the date of the offence charged was found or had been in his possession.
  • the fact that within the five years preceding the  date  of  the  offence  charged, he was convicted of any offence involving fraud or dishonesty
  1. Section 82 (2) Evidence Act 2011: Evidence of character of the accused in criminal proceedings. The Act provides as follows:

2.) The fact that an accused person is of bad character is relevant:-

a.)  When the bad character  of the accused person is a fact in issue.  b.) When the accused person has given evidence of his good character

3.) An accused person may be asked questions to show that he is of bad character in the circumstances mentioned in section 159 (d)

4.) Whenever evidence of bad character is relevant evidence of a previous conviction is also relevant.

 

  1. Section 94 Evidence Act, 2011: Evidence of identity of name and handwriting may be admissible also to prove execution of a document. The Act provide as follows:
    • Evidence that a person exists having the same name, address, business or occupation as the maker of a document purports to have, is admissible to show that such document was written or signed by that
    • Evidence that a document exists to which the document the making of which is in issue purports to be a reply, together with evidence of the making and delivery to a person of such earlier document, is admissible to show the identity of the maker of the disputed document with the person to whom the earlier document was delivered.
  2. Section 180 Evidence Act 2011: Competency of Accused person to give evidence. The Act provides as follows:

Every person charged with an offence shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person. Provided that-

  • A person charged and called as a witness in pursuance of this section shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged or is of bad character
    • The proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or
    • He has personally or by  his  legal  practitioner  asked questions of the witnesses for the prosecution with a view to establish his own good character or has given evidence of his good character, if the nature or conduct of the defence in such as to involve imputation on the character of the prosecutor or the witnesses for the prosecution or
    • He has given evidence against any other person charged with the same offered

 

  1. Section 211 of the Evidence Act 1990:- Prosecution for Rape:

Under this provision, when a man is charged with an offence of rape, the evidence of the fact that the woman who alleges the offence is a woman known to be generally of  immoral character. Such  a  woman may be  asked if she had connections with other men or the Defendant on some other occasion. It should be noted that her answers as regards whether she had connections with other men  cannot be contradicted. It is only  the  question as to whether she ever had connection with the Defendant that may be contradicted if denied. See the case of R v  Krang,  {1973} 57  CR. App. Rep. 466 . It was held in this case that on a charge of rape, a witness called by the Defence to prove that the prosecutrix was a prostitute was entitled to give his reasons for saying  that  she  was a  prostitute beyond  the mere fact of having himself had sexual intercourse with her.

Take note that the above position of Section  211  of  the  Evidence  Act 1990 is no longer the position under the Evidence Act  2011 because the new Act did alter the material content of the Section 211 of the 1990 Evidence Act.

Section 234 Evidence Act 2011 provides as follows:

Where a person is prosecuted for rape or attempt to commit rape or for indecent assault, except with the leave of the court no evidence shall be adduced, and, except with the  like leave, no question in cross – examination shall be asked by or on behalf of the defendant, about any sexual experience of the complainant with any person other than the defendant .

A vivid look at the Section 234 of the Evidence Act 2011, shows that adducing evidence of the immoral life style of the Complainant or sexual experience with any other person or cross examination in that regard as allowed under Section 211  Evidence Act 1990 is not   allowed  under Section 234 of the Evidence Act 2011 except with the leave of court.

Other Similar Facts Evidence which are Relevant and Admissible

Evidence of similar facts are generally irrelevant and inadmissible but there are

 

exceptions, which may be subject to the discretion of the judge to reject it where its judicial effect outweigh its relevance similar facts evidence. Such Similar fact  is relevant to:-

  1. Evidence which tends to rebut a defence of accident or mistake were the fact in issue is alleged crime or tort involving guilty knowledge or intention. In  R  v Geering  (1849),  G  was  charged  with  murder   of   her   husband   by administering arsenic poison.The prosecution was to call evidence showing that:

 

  • G cover for him and gave him his food. Her two sons who lived  with  her  had died of arsenic poisoning
  • Her third son had taken ill from the same arsenic substance

The defence substance objected but the court overruled. Admitting the evidence,  the court explained that it tended to show that the death of accused’s husband had not occurred by mere accident but by deliberate design.

Illustrations

Zakari advertises falsely that he carries on trade as a dairyman and famer and obtains eggs on credit from Aremu. Subsequently by the same devices, Zakari also defrauds Kuku; and Danjuma on different occasions. The three different incidents are evidence  of  similar facts, and are admission to prove intention.

  1. Evidence which tend to prove the main fact in issue. Eg. When the  similar  facts  are intermixed with  the  fact  in  issue  as  to  form  one  transaction  –  when  the similar facts and the fact in issue form a series of acts done in pursuance of someone design, constituting a continuous course of

Illustration: Usman is charged with stealing gas from PHCN in February 2011. There was evidence that he had taken the Gas from  the Gas  Main,  by means  of a pipe,  for  use in his own factory. The evidence that Usman has been doing so over a number of years is evidence of similar facts admissible on the ground that it tends to show one continuous transaction.

  1. Evidence which tend to establish Identity

Facts which establish the identity of any person or thing in issue. Fact which fix the time  and place connecting fact in issue to relevant fact or a party with some transaction.

 

Evidence of similarity of characteristics, age, photographs, handwriting,  opportunity, finger prints possession of stolen goods, special knowledge or skill etc.

Illustration  :  Kunle   is  indicted for  murder  of  Mr.  Rich.  Evidence of Kunle’s pecuniary embarrassment is relevant to show that his motive was to obtain deceased’s property.

  1. Evidence which tends to show that a conduct, which may be lawful  or  unlawful, depending on the intent with which it was done was, in fact,
  2. Evidence which tends to show that the material found in possession of the accused was possessed for an unlawful rather than a lawful
  3. Evidence which tends to show a design, or systematic conduct
  4. Evidence which tends to prove knowledge
  5. Evidence which tends to corroborate the evidence of a prosecution witness
    • The Exclusionary Aspect of Similar Facts

There are several acts that may ordinarily qualify to be similar facts but which the court  has no power to receive because such facts are  statutorily excluded from been accepted  or admissible. Such provisions include:-

  1. Section 1 Evidence Act, 2011: Evidence may be given of facts in issue and relevant facts

Evidence may be given in any suit or proceeding of the existence or non- existence of every fact in issue and of such other facts as declared to be relevant and of no others. Provided that

  1. The court may exclude evidence of facts which through relevant  or deemed  to be  relevant  to  the  issue,  appears  to  it  to  be  too  remote  to  be  maternal in all the circumstances of the case: and
  2. This section shall n o t enable any  person  to give  evidence  of  a fact,  which he is disentitled to prove by the provision of the law for the time being  in
  1. Section 82 Evidence Act 2011: Evidence of character of the accused in criminal proceedings

1.)  Except  as  provided  in  this  section,  the  fact   that   an   accused   person   is  of bad character is irrelevant in criminal proceedings

 

2.) The fact that an accused person is of bad character is relevant:-

a.) When the bad character of the accused person is a fact in issue.

b.) When the accused person has given evidence of his good character

 

3.)    An accused person may be asked questions to show that he is of  bad  character in the circumstances mentioned in section 159 (d)

4.)     Whenever evidence of bad character is relevant evidence of a previous conviction is also relevant.

  1. Section 180 Evidence Act, 2011: Competency of Accused person to give evidence. Every person charged with a defence shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is  charged  solely or jointly with any other
  • A person charged and called as a witness shall  not be asked,  and if asked,  shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged or is of bad character
    • The proof that he has committed or been  convicted  of  such  other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or
    • He has personally or by his legal practitioner asked questions of the witnesses for the prosecution with a view to establish his own good character or has given evidence of his good character, it the nature or conduct of the defence in such as to involve imputation on the character of the prosecutor or the witnesses for the prosecution or
    • He has given evidence .against any other person charged with the same offence
  1. Section 36 (1): Evidence of Scienter

Whenever any person is being proceeded against for receiving any property, knowing i t to have been stolen or for having in his possession stolen property for the purpose of proving  guilty  knowledge  there  may  be  given  in  evidence   at any stage of the proceedings:

 

  1. The fact that other property stolen within  the  period  of  twelve months proceedings the date of the offence charged was found or had been in his
  2. The fact that within the  five  years  proceeding  the  date  of  the offence charged, he was convicted of any offence involving fraud or dishonesty

The last mentioned fact may not be proved unless:-

i). seven days’ notice in writing has been given  to the  offenders  that  proof  of such previous conviction is intended to be given, and

  1. ii) evidence has been given that the property  in  respect  of  which  the  offender is being tried was found or had been in his

Hearsay is the testimony by a witness of what other persons have said, not what he or she knows personally. It is a statement which is not made by a person  while  giving  oral evidence in a proceeding and which is tendered as evidence of the matters stated. The general exclusionary rule of hearsay evidence is that such a testimony is no evidence. The reasons may be that what the other person has said is not put on oath; the person who is to be affected by it has had no opportunity to cross-examine him or her; it is also not the best evidence.  When  faced  with  the  issue   of   hearsay,   you   should   consider   the   relevance of the items of the evidence and the interest shown by the party in the  statement.

 

Definition of the Rule against Hearsay

 

Literarily, hearsay is, what a witness has heard from another person of what the accused or defendant has said, not in the presence or to the hearing of the accused or defendant. Traditionally, a testimony that is given by a witness who relays, not what he or she knows personally, but what others have said and is therefore dependent on the credibility of someone other than the witness.

According to Black’s Law Dictionary, 5th edition, hearsay evidence is the evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. It has also been explained to mean the testimony in a court of a statement made out of the court, the statement being offered as  an assertion to show the truth of matters asserted therein and thus resting for its value upon the credibility of the out-of-court asserter

According to Aguda, hearsay generally means a statement, written or oral, made by a person, who is not called as a witness. An oral or a written statement by a person who is not called as a witness; Evidence of what someone else has said is known as ‘’hearsay evidence’’.

Hearsay are assertions of persons, who are not called as witnesses, made out of court in which they are being tendered for the purpose of proving the truth or falsity of the facts contained in the assertions (oral or written).  The law of Evidence  forbids a witness to  repeat in court any statement (oral or written) made by a third party who is not called as a witness for the purpose of proving the truth of the facts stated. That would be ‘Hearsay’.

Statutory definition of hearsay:

 

By Section 37 Evidence Act 2011, Hearsay Evidence has been defined as follows:

 

Hearsay means a 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 the provision of this Act (Evidence

 

Act, 2011), which is tendered in evidence for the purpose of proving the truth of the matter stated in it.

Examples of Hearsay statements Scenario:

 

A policeman sees a man jumping down through a window from a building and pursues him. He catches up. The man resists and  engages the policeman in a fight. Zubairu observed it  all.

Zubairu reports to the students Counsellor what he saw. (Direct evidence), the students Counsellor tells the Director what Zubairu told her, Zubairu was not present (first degree hearsay). Abu Katto and Igwe were present. At home Igwe told his wife that Zubairu said that one policeman beat up a man near independent square or so (second degree hearsay). Kalto told her friends one of whom informed Jane (third degree hearsay) that there was a fight earlier in the day where the police as usual just beat up one man.

Do you notice the discrepancies in the in the different statements by different persons concerning one and the same incident? It is for this reason that hearsay is suspect.

Hearsay includes oral or written statement or conduct:

 

Suppose an investigating Police Officer (IPO) is investigating a case of stealing (theft) against X; Y said to him, I saw X running away with the type of article in question. Such a “valuable” narration by the IPO is however, hearsay.

The Evidence Act makes provision for admission of evidence of certain hearsay statement of relevancies under specified conditions and these include:

  1. Statements of relevant facts by person who cannot be called as witness (Section 39).

 

  1. Statements relating to cause of death (Section 40)

 

  1. Statements made in the course of business (Section 41)

 

  1. Statement against the interest of its maker (Section 42)

 

  1. Statements by opinions as to public rights, customs and matters of general interest (Section 43).
  2. Statement relating to the existence of a relationship (Section 44)

 

  1. Declarations by testators (Section 45)

 

  1. Statements of facts made in a prior judicial proceedings as proof in a subsequent judicial proceeding (Section 46)
  2. statement made under any criminal procedure legislation (Section 47)

 

  1. Depositions at preliminary investigations or coroner’s inquest (Section 48)

 

  1. Written statements of the investigating Police officers (Section 49)

 

  1. ENTRIES in Gazettes, Books, Maps, Acts/Laws, Certificates, Judgments of Courts convictions etc. (Section 50-65)

All these above mentioned are the exceptions to the hearsay rule which shall be fully discussed in the next units.

Scope

 

Hearsay rule does not and should not exclude facts. Therefore a fact that is relevant does  not become irrelevant merely because the party seeking to adduce evidence of it has adopted a method which the court does not accept.

Hearsay rule is a means of proof or of providing particular facts. It proscribes a method of proving them. In an era when substantive justice is taking precedent over procedure, the court should apply also the blue pencil rule, excising irrelevant aspects of an assertion (oral or written) and receive relevant facts.

You would have noted that hearsay connotes not a quality, but a purpose.  You may repeat  a statement as many times as you choose, what matters is your purpose and to the relevance of the item.

A statement may be made for the following purposes:

 

  1. To establish the truth of what it states, if the evidence is adduced for the purpose of establishing or deconstructing the truth or falsity of the averment, (the truth or falsity of what was stated). It is hearsay and must be excluded: R v  Sparks (1969), R v Turner (1975) Q B 834.
  2. Some other reasons: If the evidence is adduced to prove or emphasize the fact that such averment was made at all, it is not hearsay but a direct and an original evidence; Subramanian v Public Prosecutor (1956) I WLR 965: Mawaz Khan v The Queen (1967).

 

A statement made in a particular context may be performative and capable of affecting the state of another’s mind and subsequent conduct; Examples are words of incitement to commit crime; make or accept an offer in a contractual transaction. Such statements are excluded from the hearsay rule.

So also is a statement by an accused if it is for the purpose of explaining his or her answers to the police as well as his or her conduct when charged (Subramanian case) Woodhouse V Hall (1980)

The Rule against Hearsay.

 

The Evidence Act, 2011 Section 38: Hearsay rule stipulates  expressly  that  “hearsay evidence is not admissible except as provided for in the Evidence Act 2011 itself or by any other provisions of this or any other Act.

 

According to Section 126 (a-d) Evidence Act 2011, the general rule is that oral  evidence  must be direct; and except the content of documents, all facts may be proved by oral evidence. It provides as follows:

Subject to the provision of Part III of the Evidence Act (Relevance and Admissibility by certain evidence) oral evidence shall, in all cases, whatever, be direct if it refers to:

  • a fact which could be seen, it must be the evidence of a witness who says he saw that fact.
  • to a fact which could be heard, it must be the evidence of a witness, who says he heard that fact
  • to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner
  • if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person, who holds that opinion  on  those grounds.

The rule against hearsay consists in truth of two separate rules:

 

  • The rule requiring evidence to be first hand: This rule demands that evidence must be given by the percipient, because of the risk of the evidence being altered as it passes from one witness or potential witness to
  • The rule requiring evidence to be given orally in court: This presupposes that evidence must be given in the witness box, because of the importance attached to the Oath and to giving the opposing party or parties the opportunity to cross

At common law, former statements of any person whether or not he is a witness in the proceedings, may not be given in evidence, if the purpose is to tender them as evidence of the truth of the matters asserted in them, unless they were made by a party or in certain circumstances by the agent of a party to those proceedings and constitute admissions of fact relevant to those proceedings. (Phipson 12 Ed. P 263).

This is identical with the hearsay rule in Nigeria. The rule is to the effect that: an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.

In  Utteh  v  State  (1992) 2 S C N J (Pt. I) 183,  the  Supreme  Court  of  Nigerian  quoted   with approval the judgment of this Judicial Committee  of  the  Privy  Council  in Subramanian V Public Prosecutor, where the rule was expressed thus;

 

“Evidence of a statement made to a witness by a person, who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made”

 

Assumption

 

Hearsay has been described in terms of “statement”. We have glossed over the term: “statement”. We have been guilty of false assumption that you know what a “statement” means. You should be careful always to guide against false assumptions? Be critical about terms.

[

 

 

 

 

 

 

 

 

What is a statement? – A statement is an assertion. What is an assertion? For the purpose of evidence, does a statement or assertion include?

  • Any representation of fact or opinion made by a person by whatever means (including statement, non-statement, assertive, non-assertive etc)?
  • Statement only: i.e. representation by words?

 

  • Non-statement: representation made in a sketch, photo fix or other pictorial form

 

  • Assertive statement: Intelligible and complete statement?

 

  • Non-assertive: i.e. incomplete statement, non-statement like a pictorial form of statement, sketches, photo-fix, or greetings, commands or questions, which tend to have implied assertions?

These may be wider than the present scope of the term: statement for future development of Law of Evidence. What then is a ‘Statement’?

 

A statement is any representation of fact or opinion  made  by a person  by whatever  means; and may be assertive non-assertive or mixed. The English court has held that  hearsay statement identifying marks on article infringes the hearsay rule: Patel V Comptroller of Customs (1965). Compare also R v Brown (1991) and R v Rice (1963).

EXCEPTIONS TO HEARSAY EVIDENCE

As earlier stated, “Hearsay Evidence” is an oral or written statement, made by a person, not called as witness or a statement contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of the Evidence Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it. (See Section 37 of the Evidence Act2011). Generally hearsay evidence is excluded and held inadmissible from evidence except as otherwise provided for or permitted in the Evidence Act or any other legislation (See Section 38 Evidence Act 2011).

The exclusionary rule in both the Evidence Acts 2004 and 2011 are substantially similar, and as Aguda has said:

‘The general rule is that a witness can give evidence only of facts of which he has personal knowledge, something, which he has perceived  with  one  of  his  five  senses. His statement must be accepted as prima facie evidence of his possession of such knowledge for there would be an infinite regress  if this fact  had to  be proved by another witness’.

There are a large number of exceptions to this general rule. Some of them are listed as follows:

  • Dying declaration Section 40 Evidence Act 2011

 

  • Statement made by a deceased person in the ordinary course of business Section 41 Evidence Act 2011
  • Statement by a deceased person against his pecuniary (financial) interest Section 42 Evidence Act 2011
  • Statement as to pedigree by a deceased person Section 44 Evidence Act 2011

 

  • Facts showing the existence of a state of mind or bodily

 

  • Admission and confession Part III, Evidence Act

 

  • Depositions taken at the preliminary investigation under certain

 

  • Statements contained in Public documents Section 52 Evidence Act 2011

 

  • Statements accompanying and explaining an act forming part of res Applicable by Section 4 Evidence Act 2011
  • Statements of  affidavits  especially  in an originating    summons     or    interlocutory
  • Other matters eg. Status, complaints in sexual offences. We shall discuss some of these exceptions in greater
  • Statements made by Persons who have since died. See Section 39

 

Among the exceptions to the rule of exclusion is the statement made by the following persons:

  • Person who has since died. Section 39
  • Person who is beyond the sea

 

  • Person who is unfit as witness (i.e. incapable of giving evidence
  • Person who is kept out of the way by the adverse party
  • Person who cannot be identified or
  • Person who cannot reasonably be expected to have any recollection  of matters  relevant to the accuracy or otherwise of the
  • Person whose presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers

It is not every statement made by persons in the category listed above that is admissible. The particular statement in issue must be one of the following:

  • Statement made by them in the course of business
  • Statement made by them against their own interest
  • Statements as to Pedigree
  • Statements as to Public and General Rights
  • Statements by testators
  • Dying

Statements made in the Ordinary Course of business.

 

A verbal or written statement made in the ordinary cause of business by a person, who has since died is admissible in proof of facts which  was the person’s duty to state on record.  The Evidence Act, 2011, Section 41 states:

“A statement is admissible when made by a person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books, electronic device kept in the ordinary course of business or in the discharge of professional duty, or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind or of a document used in commerce written or signed by him or of the date of a letter or other document usually dated, written or signed by him:

Provided that the maker made the statement contemporaneously with the transaction recorded or so soon thereafter that the court considers it that the transaction was at that time still fresh in his memory”.

In essence for a statement in issue to become admissible, you need to establish to the satisfaction of the court that:

  1. The statement is written or verbal according to the course of business in question and it is relevant

 

  1. The maker of statement died before the evidence  of  the  statement  became
  2. The statement relates only to the acts of the person making it and to no one else’s.
  3. It must have been made in the course of his or her

 

  1. If the statement is not made contemporaneously, it must have been made within a reasonably short time of the performance of the acts. (The court has rejected a record of collision which was made two days after the collision. Conversely, the admitted a drayman’s record of delivery of beer made in the evening whereas the delivery was in the morning).
  2. There must be a duty to act and to report or record such

 

  1. The duty must be owed to a third party and the action recorded must have been performed by the maker him or
  2. The statement is only admissible as to the matters covered by the maker’s duty.

Electronic device is an innovation bringing law of evidence in line with contemporary development. Unlike the old law, the Evidence Act 2011 demands that the statement has to be made contemporaneously with the transaction. The addition of the clause ‘or so soon thereafter that the court considers it likely that the transaction was at the time still fresh in his memory” reflects judicial decisions such that it can be said that except for the introduction of electronic device, there is no material difference between the old and new law of evidence.

The Common Law requires additional pre-condition that the statement must have been made without any motive or interest to misrepresent the facts at the time of making the statement. The Evidence Act is silent on this.

In R v TAORIDI LAWANI (1959), The Prosecutor sought to tender in evidence  a Police  Report  Book” in which entry was made by a Police officer who has since died.  The book  was not “a public or other book.” The deceased Police Officer did not personally perform the acts he had recorded. The statement was held admissible. The grounds for allowing the  entry was that  the  deceased  Police  officer  made  it  in  the  cause  of  his business and  that the entry relates to matters within his personal knowledge.

Suppose in a criminal proceeding, the place of arrest has become an issue requiring proof. Can the prosecutor prove this by putting into evidence a warrant by a deceased constable containing such a record?

 

The short answer is ‘No’. The reason is simply because there is no duty imposed on the deceased to record the place of arrest on a warrant of arrest.

Admissibility of a statement of the category in discourse is of limited purpose. The  statement is not accepted as proof of the whole contents. They are evidence only of these facts, which are within the maker’s duty to record or report.

STATEMENT AGAINST PERSON’S OWN INTEREST

 

This is under Section 42 Evidence Act, 2011. A statement is admissible where the maker had peculiar means of knowing the matter stated and such statement is against his pecuniary or proprietary interest and

  • he had no interest to misrepresent the matter or
  • the statement, if true, would expose him to either criminal or civil liability

Section 42 (b) is novel, as it is not contained in the Evidence Act prior to 2011. Such statement as will be admissible under this section includes:

  • The statement is admissible to prove collateral matters provided some part of the statement is against the maker’s
  • The declarant must have known that the declaration was against his or her interest, at the time when it was
  • It is not sufficient to show that the statement was against the maker’s general interest.
  • It must have been against his or her pecuniary or proprietary interest. For instant, an admission by a clergyman that he performed irregular marriage ceremony is unrelated to pecuniary or proprietary interest and therefore inadmissible.
  • It is sufficient that the statement was prima facie contrary to his or her pecuniary or property interest even if it later turns out to the
  • Pecuniary or proprietary interest encompasses:
    • A statement that the maker owes money
    • A statement that the maker has received money owed to him or her contrary to his or her pecuniary
    • A statement tending to lessen the maker’s interest in

There is a high authority for the views that the maker must have personal knowledge of the facts stated, as there are judicial decisions to the contrary. See SUSSEX PEERAGE CASE (1844) 11 CL. & F. 85; In that case, a clergyman who has since died made a statement exposing him to the risk of a criminal prosecution for irregular celebration of marriage. The House of Lords held that the statement did not come within the exception because the interest of the clergyman thus affected was neither pecuniary nor proprietary. See also CREASE v BARRATT (1835) 1 CR. M. & R. 919.

Examples of cases where statements against pecuniary interest have been accepted are:

 

  • Taylor v Williams (1876). In this case, the deceased made entries in his day book stating that he made a loan to X and admitting also the repayment of interest and repayment of the loan to him, leaving some balances outstanding. The court admitted all these entries on the ground that the acknowledgement of receipts of interest and repayment of the loan to him were declarations against deceased pecuniary
  • Higham v Ridgeway (1808) 10 East 109. The deceased was a male mid-wife. He made entry in his dairy acknowledging payment for the birth of a child on a peculiar day. This entry was admitted being a declaration against the deceased pecuniary interest.

 

Examples of a declaration of proprietary interest are illustrated in Sly v Sly (1877) [as cited  in Nwadialo] and Obawale v Williams (1996) 12 KLR (Pt. 46) 2123.

In Sly v Sly, the deceased was an occupant of a land; He apparently held an absolute interest on the land but had declared that he only held a life interest under a Will with two named persons as Executors. The declaration was held to be against the deceased’s (declarant’s) interest and admissible.

The latter case of Obawale V Williams (1996) 12 KLR (Pt. 46) 2123 was a land dispute. The Supreme Court in that case, admitted the evidence of payment of rent to the ancestors of the defendants as a declaration against the proprietary interest  of  the  Plaintiff’s  progenitor through whom they claimed title.

Requisites for admissibility

 

An oral or written statement made by a relative (who is now deceased) ante litem motam (i.e before the question in relation to which it is sought to be proved had arisen) is admissible to prove matters of pedigree in cases of pedigree.

Written statements by pedigree may be found in Family Bibles, engravings in Jewellery, tomb stones, plagues or brasses in the churches. They commonly relate to dates of births, deaths and marriages and legitimacy.

A statement made in order to avoid a future dispute may not  be  admissible.  Why? Because, the chances of these being disputed at all is already present in the maker’s mind and this was capable of influencing him or her.

The statement must relate to the existence of a relationship, by marriage, blood  or  adoption between persons as to whose relationship by marriage, blood or adoption the maker had special knowledge.

The statement may not necessarily be contemporaneous nor made from personal knowledge. The statement may be oral or written (e.g. in the family Bibles  or tombstones) or even by conduct (by treating the child as legitimate).

Such statement must be one in which:

 

  • The maker must have been related (e.g. by blood or marriage ) to the person to whom the statement refers
  • The case in which the statement is sought must be one in which the relationship (i.e. Pedigree) is in
  • The statement is inadmissible if it is designed to serve the maker’s own interest.

See the case of HAINES v GUTHRIE (1884) 13 QBD 818. H took out an action for the price of goods sold to which the defence of infancy was pleaded; the date of birth being thus in question. A statement by the defendant’s deceased father as to this date made in an affidavit in a previous action between different parties, was held inadmissible, this action, not being a pedigree case.  As explained  by  Brett, M.R , the questions   of family,   whose son the defendant was, whether a legitimate or a natural son, the oldest or youngest or what position he occupied with regard to the rest of the family are all immaterial. The only question is “What was the date of the birth of the defendant”. The statement by the

 

defendant’s deceased father in the present case is prima facie hearsay evidence and the general rule of law is that hearsay evidence is not admissible and this case does not fall within the recognized exceptions to the general rule.

Statement of opinion as to Public and General Rights or Custom and Matters of General Interest. These include:

  1. A statement is admissible when such statement gives the opinion of a person as to the existence of any public right or custom or matter of general  interest, the existence of which, if it existed, the maker would have been likely to be
  2. A statement referred to in subsection (1) shall not be admissible, unless it was made before  any  controversy  as  to  such  right,  custom  or  matter,  had arisen (Evidence Act 2004 Section 33 (1) (d); Evidence Act 2011 Section 43).

Before the statement is received in evidence, the following conditions must be satisfied:

 

  1. It is admissible only after the maker’s death to prove the rights in

 

  1. The right must be a public right or a general right. A public right is one enjoyed by the public at large (e.g. the right to use the high way). A  general right is one  affecting a defined class of the population. Example is the right of common, which affects only the inhabitants of a village such as their boundary

It must have been made by a person with competent knowledge who can reasonably be expected to have accurate knowledge of the facts.

The subject of the statements must be the existence or non-existence of the right; No evidence which is neither of its existence nor of right, or evidence of collateral issues or of particular facts which may support or negate it. For instance, if the right of highway is in issue, it is not sufficient to adduce evidence that His Excellency, the Vice President of the Federal Republic of Nigeria planted a tree to mark this boundary.

The statement may be oral or written. The fact that the maker has an interest  in  this subject matter does not render the statement inadmissible unless it obviously was made to serve                       his          or         her                               own                   interest.

 

 

Declarations by Testators. This is provided for under Section 45 (1&2) as follows:

 

  • The declarations of a deceased testator as to his testamentary intentions and as to the content of his will are admissible when:-

 

  1. his will has been lost, and when there is question as  to  what  were its contents; or
  2. the question as to whether an existing will is genuine or was improperly obtained; or
  3. the question as to which of more existing documents than one constitute his will
  • In the cases mentioned above, it is immaterial whether the declarations were made before or after the making or loss of the

A declaration, written or oral made by a Testator either before or after the execution of his (or her) Will is, in the event of its loss, admissible as secondary evidence of its contents.

The contents of a lost Will may be proved by the evidence of a single witness, though interested, whose veracity and competency are un-impeached.

Thus, Section 45 allows in evidence, statements of persons who have since died if they relate to declarations by testators. The origin of this rule is traceable to the old case of SUDGEN v LORD ST LEONARDS (1876) 1 PD. In this case, the Will of Lord St Leonard, a Lawyer and a famous judge was missing at his death and the question before the court was the content of the Will. His daughter knew most of the contents of the Will. She was able to quote most of it from her memory. She and some other witnesses were able to testify as to statements made by the deceased before and after the execution of the Will concerning its contents. The Court of Appeal held that the statements made by the deceased before or after he had executed the Will were admissible as exceptions to the hearsay rule.

This decision has been re-affirmed in the case of MCGILLIVARY, RE (1946) 2 ALL E.R. 301 and also represents the law applicable in Nigeria.

 

Statements relating to cause of death. This is known as Dying Declaration.

 

Dying Declaration has been defined by the Black’s Law Dictionary 5th Edition to mean statements made by a person who is lying at the point of death, and is conscious of his approaching death, in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death, and in reference to the person who inflicted such injuries or the connection with such injuries of a person who is charged or suspected of having committed them.

This is also defined in Section 40, Evidence Act, 2011 as:

 

  • Statement made by a person as to the cause of his death or as to any of the circumstances of the events which resulted in his death in cases in which the cause of the person’s death comes into question is admissible, where the

 

person who made it believed himself to be in danger of approaching death although he may have entertained at the time of making it hope of recovery (Identical with Section 33(1) (a). Evidence Act, 2004)

  • A statement referred to in subsection (1) of this section shall be admissible whatever may be the nature of the proceeding in which the cause of death comes into

A dying declaration is a statement, not on oath of an injured and dying person who, at the time of making it, believes him or herself, to be in danger of approaching death, although he or she may have entertained hope of recovery as to the facts and circumstances which caused his or her death.

It is a statement made by the person, who is dead as to the cause of his or her death or as to the circumstances of the transactions which resulted in his death in the case where the cause of his or her death is an issue. Such a statement is relevant and admissible, subject to the following conditions:

The declaration may be written or verbal and of relevant facts. Requisites of relevance are  as follows:

  1. Declarant must have died before the evidence of the

 

  1. It is admissible only in trials for murder (homicide not punishable with death) or manslaughter (homicide not punishable with death), where the accused is alleged to have caused the death of the deceased/declarant.
  • The statement must be made by the victim of the alleged crime (i.e. the deceased) and must relate to the cause of his or her own
  1. The statement must contain some expression of hope of recovery or doubt as to his death. That is, the deceased-declarant, at the time of making this declaration, must have believed himself or herself to be in danger of approaching death, although he may have entertained hopes of recovery. The trial judge is required to make a specific finding that the deceased did in fact believe in the danger of approaching death when making the declaration.
  2. The declarant must have been a competent witness if he or she were alive. The declaration must not be or include hearsay; it may include an
  3. The declaration can be oral, or written or by

 

  • (vii) Where the declaration is admitted, it must be            It          is          not competent to shift the parts that are favourable from those that are not.

 

The statement must not have been elicited by leading questions but this does not necessarily make the declaration inadmissible, all else being equal.

It is immaterial that the declarant does not die after a prolonged period of time after making the statement.                                     The principle of dying declaration is formulated in the belief that in the peculiar circumstances, and in the last stages of one’s life, one will avoid any further occasions of sin and when faced with imminent death, one will tell the truth as he or she may soon face his or her maker.

Who may record a dying declaration? Any of the following may:

  • Any person who happens to be present at the
  • A Police Officer
  • A Medical Doctor
  • Other witness(es)

It is not a requirement of law that oath has to be administered but it is necessary that the records should show the exact words, and the questions and answers. If it is possible, it should be witnessed by the person(s) present.

Eyre, C.B explained the rationale of this rule as follows:

 

“The general principle on which the species 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 to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful, is considered by the law as creating an obligation equal to that when is imposed by a positive oath administered in a Court of Justice” ( SEE R v WOODCOCK (1789)1 LEACH 500 OR (1789) 168 ER 353 )

DEPOSITION: What is a Deposition? A deposition may be defined as

  1. A witness’s out-of-court testimony that is recorded in writing, usually by a Magistrate for later use in court or for discovery
  2. A written record of the sworn evidence given by a witness, a deponent, before a Magistrate or other authorized

 

  • A statement made on oath before a magistrate in the  presence  and  to  the  hearing  of  the  accused  taken  down  in  writing  and  signed  by  the  person  making it and the

The person making the statement is called the deponent and the statement he or she makes is the deposition.

Deposition of witness unable to attend proceeding.

 

Where any person, who is to give a material evidence in respect of an indictable offence in respect of which a preliminary inquiry is proceeding, is suffering from illness or injury, and unable to attend at the place where the Magistrate usually sits, any magistrate shall have power to take the deposition of such person at the place where such person is.

The Magistrate taking the deposition shall put all parties on reasonable notice of intention to take the deposition, time, and place. Parties present shall have opportunity to cross examine the witness. The deposition is recorded, read over to and signed by the deponent and the Magistrate.

It is then forwarded to the magistrate by whom the preliminary inquiry is being or has been held and such deposition shall be treated in all respects in the same way and shall be considered for all purposes as a deposition taken upon the preliminary inquiry.

A deposition taken down in a criminal proceeding may be admissible in a subsequent proceeding in the circumstance, where the deponent is dead, insane or too ill to attend trial or kept away by the adverse party.

A number of states have abolished Committal proceeding or preliminary inquiry (or PI) in their jurisdictions on the ground that:

  • It is time consuming
  • It is expensive
  • Attendant publicity may be prejudicial to the trial of the case
  • Possibility that evidence admitted at the PJ before the magistrate may be inadmissible at the
  • It is prejudicial to the accused

On the other hand, States that have retained Preliminary Inquiry argued in its support that:

 

  • It safeguards the interests of the accused by allowing
  • Witnesses, who would not have been, are informed of the circumstances of the crime for which accused is invited and sentenced
  • Publicity prevents secret trial and malicious rumours

 

  • Statutes provide for the admissibility of other written statements in criminal proceedings than Committal

Value and purpose of deposition:

 

A deposition is a written record of what the deponent has said. It is a record in the trial in the absence of the deponent if it is proved that he or she is:

  • Dead

 

  • Beyond the seas

 

  • Unfit to attend as a witness

 

  • Incapable of giving evidence

 

  • Cannot be identified or found

 

  • Cannot reasonably be expected to have any recollection of matters relevant to the accuracy or
  • Being kept out of the way by the adverse party

 

  • Unobtainable without unreasonable delay or expenses

 

 

 

 

COMPETENCE AND COMPELLABILITY

The main issue of concern is whether a witness may legally give evidence in a judicial proceeding. It is not about the question of reliability. There are legal disabilities forbidding certain witnesses from testifying. A very close and ready  example  is  a  child  who  by  reason of his age cannot understand the question that are put to him or her or give answers that can be understood.

The General Rule: Read generally Chapter XI Evidence Act, 2011.

 

The general rule is that every person is competent to give evidence except the following:

 

  1. Persons of unsound mind and drunken persons who are incapable of giving rational testimony.
  2. A child in civil cases, too young to understand the nature of the

 

  1. Persons who will neither take the oath, nor

 

All evidence must, as a general rule, be given on oath or affirmation. Oath is by swearing with the Holy Bible by Christians, the Holy Qur’an by the Muslim and ‘iron’ by the traditionalists.

A witness affirms if he has no religious belief, or if the taking of an oath is contrary to his religious belief or if his religion permits him to take an oath but compliance                                             with the

requirement of this religion would cause undue inconveniences or delay.

 

The following witnesses do not need to swear or affirm:

 

  • Children of tender years, who do not understand the nature of an oath, but who understand the duty of speaking the
  • A witness, who is merely producing a
  • A Counsel or a judge explaining cases in which he is previously
  • An accused unsworn statement without cross examination either in lieu of or in addition to, his sworn
  • The Head of State, (not being foreign sovereign)

 

Any person, who understands an oath or is capable of affirming, is competent to give evidence. A witness is lawfully sworn if he or she subscribes to an oath or affirmation. Both in law and practice, any conviction based on the evidence of a witness who has not been lawfully sworn is bad and must be quashed

A competent witness may also be a compellable witness with certain exceptions; as you shall see later, spouses are not compellable witnesses for each other in a criminal proceeding.

Competency of Children

 

The competency of a child to give evidence is determined by a test of intellect. A child who lacks the requisite intellect and does not understand the nature of an oath is incompetent to give evidence. However, the Children and Young Persons Act permits a young child, who does not understand the nature of an oath to give unsworn testimony if the judge is satisfied that he or she understands the duty of speaking the truth. Such an unsworn evidence of a child is not to be admitted or acted upon unless it is corroborated. Indeed, no person can be convicted upon an uncorroborated and unsworn evidence of a child.

In this context, the age of the child is not material, but the child must:

 

  • Possess the intellect

 

  • Fall within the definition of a child, being person under the age of 14

 

In order to determine whether a child understands the nature of an oath (and therefore be competent to give evidence), the judge must examine the child in the open court.

 

Competency and Compellability of witnesses

 

  • Witness for the Prosecution

 

The following are not competent as witnesses for the prosecution:

 

  1. the accused person

 

  1. the spouse of the accused with certain exceptions

 

  • persons jointly indicted or jointly tried with the accused

 

  1. spouses of persons jointly charged or jointly tried with the accused

 

  • Witness for the Defence:

 

The following are competent witnesses for the defence

 

  • The accused person whether charged solely or

 

  • The spouse of the accused person

 

Rights   of   the  accused  person:                  The       rule       as       to       competence        and compellability:

He is a competent witness for him or herself. His or her failure to give evidence is not  subject to comments by the Prosecution. He or she may not be called as a witness, except upon his or her own application.

If  called,  he  or  she  may  be  asked  any   question   in   cross-examination,  notwithstanding that it incriminates him as to the offence charged.

He may not be asked and if asked shall not be required to answer any question tending to show that he has committed, or been convicted of, or charged with, any other offence, or is of bad character unless:

  • Proof of the commission or a conviction for that other offence is admissible to prove the present offence as in evidence
  • He or she personally or by his or her counsel asked questions of witnesses for the prosecution with a view to establishing his own good character or has given evidence of his good
  • The nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the prosecution’s

Please note the following:

 

  1. By putting his or her character in issue, an accused person puts the whole of his or her character in issue and may, as a general rule, be cross -examined with regards to previous charge for which he or she was convicted; to bring up evidence as to statements made at that trial, which tend to conflict with the evidence in the court
  2. It is not all the imputation made on the character of witnesses for the prosecution that may or may not put the character of the accused in issue. For example:

It does not in the following cases where

 

  • The attacks are directed at persons who are not parties g..

 

  • The presiding magistrate
  • The police officer (or a police officer, who does not give evidence)
  • The deceased
  • If defence merely denies the prosecution’s evidence however,

 

For instance, to say “The Police witness is a liar” is nothing more than “pleading not guilty with emphasis”.

 

A cross examination of a prosecution in the case of rape or indecent assault to the effect that the prosecutrix consented is not an imputation on her character.

In the important case of SELVEY v DPP (1968) 2 ALL ER 497, the House of Lord firmly established the following procedure:

  • The words of the statute must be given their ordinary material
  • It is permissible to cross examine the accused as to character both when imputations on the character of the prosecutor and his witnesses are cast to show their unreliability as witness independently of the evidence given by them and also when the casting of such imputations is necessary to enable the accused to establish his
  • In rape cases, the accused can allege consent, and the loose character of prosecutrix, thus seemingly placing himself in peril of such cross  But the issue can be said to be one raised by the prosecution and if what is said amounts in reality to no more than a denial of the charge expressed, however emphatic the language, it should not be regarded as an imputation on character.

By giving evidence against any other person, charged with the same offence (i.e. an accused giving evidence of damning character against a co-accused charged with the same offence). In this case, the judge has no discretion to exclude such evidence even though its prejudicial effect far outweighs its probative value.

The view has been strongly expressed that there is no general rule that evidence of the bad character of the accused cannot be introduced where the defence necessarily involves imputations against the character of the prosecution or its witness. The trial judge has an unfettered discretion to allow or refuse to permit cross examination of the accused in the particular circumstances.

Spouses of Parties

 

  • Position of Accused’s Spouses:

 

Following a decree of divorce or nullity, spouses are cured of incompetency. They become competent witnesses for the prosecution, in matters occurring ‘after’ the decree. They remain incompetent in respect of matters occurring during their covertures.                                                                                A    decree of judicial separation is ineffectual; the spouse remains incompetent witness. Parties to a marriage that is void ab-initio are not affected by incompetency rule as there was never a marriage.

The rules relating to the competency and compellability of a spouse of an accused person to give evidence apply in three categories of cases, namely:

  • Cases in which a spouse is competent only upon the application of the

 

  • Cases in which the spouse in competent without the consent of the

 

  • Cases in    which    a    spouse     is    both    competent     and    compellable    for    the prosecution or the
  • Cases in which the spouse is competent

 

A spouse is competent to give evidence upon the application of the accused in cases other than those cases in which he or she is competent without the consent of the Accused  as well and those in which he or she  is  both  competent  and  compellable  for  the  Prosecution or the defence. In these cases both spouses must give their consent.

  • Cases in which the spouses is competent without the consent of the Accused. The following cases are examples in which a spouse is not competent to give evidence for the Prosecution or the defence, without the consent of the
    • Neglect to maintain or desertion of wife or family

 

  • Offence relating to children

 

  • Child destruction

 

  • Bigamy

 

  • Sexual offences other than bigamy, indecent assault on a man, and assault with intent to commit
  1. Cases in which a spouse in both competent and compellable. These are:

 

  1. Offences against the spouse’s property

 

  1. Offences of violence against the spouse

 

  • Cases brought for the purpose of enforcing civil rights (e.g. public nuisance)

 

The spouse is competent to give evidence against the other spouse in cases where the health, liberty, or person is involved. Thus a spouse is a compellable witness where the  other is charged with attempting to strangle his or her, intent to murder  him  or  her, causing him or her grievous bodily harm, maliciously inflicting grievous bodily harm or attempting to poison him or her with intent to murder.

Cases in which the spouse is competent and/or compellable include attempt to commit such cases.

These rules which apply to spouses, are applicable during the subsistence of the marriage between the spouses and after the termination of such marriage. They apply with equal  tone to:

 

  • Spouses during the subsistence of marriage

 

  • Ex-spouses (i.e. erstwhile husband or wife who have divorced) for offences committed during the subsistence of the
  • Persons whose voidable marriage has been

 

In this context, void marriage is no marriage and parties to it are not spouses.

 

Conversely a marriage still subsists even after a decree of judicial separation. Thus  a spouse’s incompetence to give evidence against the other spouse is not brought to an end by a decree of judicial separation.

The sum total is that in civil court, both parties and their spouses are compellable witness. The accused is never a compellable witness in criminal cases. His spouse is neither competent nor compellable for the persecution. For the defence, she is competent on the application by the accused but not compellable.

Defendant

 

An accused is a competent, but not compellable witness in his or her own case or in defence of a co-accused. He is not also a competent witness for the prosecution. The following are competent witness for the defence:

  1. The accused person, whether charged solely or jointly

 

  1. The spouse of the accused

 

Suppose after investigation, Police finds X and Z liable for conspiracy and X and Z were jointly charged X is competent to testify at the instance of Z and vice versa. Neither of them can be compelled and none can equally testify for the prosecution.

Suppose instead of charging X and Z jointly, they are charged separately. They cease to be co-accused and can be used one against the other.

If a defendant fails to give evidence in his/her own defence (if when  giving evidence,  refuses  without  good  cause  to  answer  any  question),  the  court  in  determining  whether he/she is guilty of the offence charged, may  draw  such inferences from that  failure as may appear proper.

An accused’s spouse is a competent witness for the prosecution, the defendant and for a co- defendant. Where he/she is not charged, he/she is a compellable witness for the defendant. In relation to some spouse’s offences, a defendant’s spouse is compellable witness for the prosecution or for the defendant,

Securing Attendance

 

The following forms or processes are available for securing the attendance of witness:

 

  • The Magistrate’s Courts. Witness Summons:

 

In the Magistrate’s Courts, a witness summons may be issued to compel a witness attendance. The witness is entitled to be paid money or travelling expenses.

  • High Court. Attendance of witness may be enforced by:

 

  • Subpoena ad testificandum – This requires the witness to attend and give oral evidence.
  • Subpoena duces tecum – This orders the witness to bring and produce a document.
  • Habeas corpus ad testificandum – This orders the custodian of a person imprisoned in consequence of a civil process to produce the prisoner to give evidence.
  • Judges Order – This is used where the accused is in prison awaiting  trial  or  under sentence.

Children and Persons of Unsound Mind

 

In criminal trials a child who understands the question asked or able to give a rational answer is competent.

Witness

 

Persons of unsound mind, by reason of the defect in their intellect, cannot be a competent witness.

 

CORROBORATION

What is Corroboration?

 

Confirmation or support by additional evidence as it is being put by the Black’s Law Dictionary 7th edition) means Confirmation, ratification, verification, or validity of an existing evidence in some material particular from another independent witness or witnesses implicating the accused.

It is the evidence that differs from but strengthens or reinforces other evidence; especially that which needs support. It is a confirmatory or supporting proof of a matter on which evidence of the same fact has already been or will be given.

Functionally, corroboration is essentially confirmatory or supportive evidence in the sense that it proves:

  1. That a crime has been committed

 

  1. That the accused is implicated in it

 

Corroboration shows that the evidence of the witness is probably true and that it is reasonably safe to convict on it. Evidence in corroboration must be independent testimony, which affects the accused by connecting or tending to connect him with the crime: R.v BASKERVILLE [1914] KB 658.

 

It is not necessary that the independent witness should confirm everything that the accomplice has said or done. All that is required is some independent evidence connecting the accused with the crime.

No Self-Corroboration

 

A witness cannot corroborate him or herself; otherwise, it would suffice for one to repeat ones story a hundred times in order to get a hundred corroboration of it. (R.v WHITEHEAD (1929) 1 KB 199). In essence, the corroboration must be extraneous and independent of the testifying witness, and must connect the accused to the crime.

 

 

A complaint is no corroboration

 

 

The testimony of a witness as to a complaint made to him or her does not amount to a corroboration of the complaint. R. V. Christie, 1914. The evidence must corroborate the remainder of the evidence in some material particular.

When Corroboration is required

 

Generally, Corroboration is not of essence so long as the parties are able to adduce enough evidence to warrant a verdict.

However, the statute creating certain offences has demanded corroborative evidence as a precondition for a conviction. In some cases also, the court, as a matter of practice, makes corroboration necessary.

 

Corroboration as a matter of Law

 

The following are examples of instances where corroboration is required by Law:

 

  1. Unsworn evidence of a child. Evidence Act Section 208 and 209

 

  1. Treason; Criminal Code Section 37

 

  1. Concealment of Treason. Section 40, Criminal Code and Evidence Act Section

 

  1. Treasonable felonies Section. 41. Criminal Code, and Evidence Act, section 200

 

  1. Promoting: Inter-communal war Section 42, Criminal Code and Evidence Act Section 200
  2. Perjury Evidence Act, Section 198

 

  1. Traffic Offence of Exceeding Speed limit: Evidence Act Section 201

 

  1. Sedition: Evidence Act Section 204, Criminal Code Section 51 (1)(b)

 

  1. Action for Breach of promise for marriage: Section 197 Evidence Act

 

It should be noted that under the Evidence Act of 2004 Sexual offences were among instances where corroboration is required by law, however, Sexual Offences were omitted from the 2011 Evidence Act

Where corroboration may be required in practice

 

Although corroboration may not be a requirement of the law, the court may in exceptional cases, demand some corroborative evidence as a matter of practice.

Such instances include:

 

  • Evidence of an accomplice
  • Sworn evidence of a young child
  • Matrimonial causes

Claimants’ evidence relating to a deceased person.

Forms of corroboration

 

Corroboration may take any of the following forms:

 

  1. Confession or admission by an accused
  2. Evidence of a witness
  • Scientific evidence
  1. Destruction of material evidence or exhibit
  2. The position of the complainant coupled with the nature of complaint as in sexual offences.
  3. Independent evidence or an earlier similar offence by the accused on the same person.

Corroborative evidence may be oral, written or documentary, real, behaviour or conduct or other. It may be direct or as in most cases circumstantial. It may also take the form of a confession, or a lie about a matter or an informal admission. It does not amount to corroboration that the party or witness gave false names or failed, refused, or neglected to give evidence. Unreliable evidence requires no corroboration.

In practice, the judge is required to:

 

  • Examine the     whole    of    the     evidence,     to     see     whether     there     is    any corroboration from the witness of the
  • State what he finds to be corroboration
  • Expressly caution him and exercise extreme care in determining whether or not to act on the suspect’s evidence where there is no corroborative

The test is whether there is an independent testimony which affects the accused by connecting or tending to connect him or her with the crime ODHIOERE v STATE (1996).

In R. v CHRISTIE (1914) AC 545, the accused was charged with indecently assaulting a child. The evidence was that after the act, the child went home and told the mother what happened. The mother took the child to the Police and the three of them went to Christie. On meeting Christie, the child pointed to him and said: “this is the man”. He repeated the assault story.

Christie was silent. At the trial, it fell for determination whether the story of the child was corroborated by that of the mother. The House of Lords held as follows:

 

  • That the mother’s evidence being a repetition of the children’s story does not amount to corroboration in
  • The statement made by the child in the presence of the police and the accused could not be admitted as part of res gestae because there was a sufficient time lag between the act and the
  • The silence of the accused did not amount to an admission and a fortiori to corroboration.
  • However, the statement was admitted as evidence of complaint in that it showed lack of consent on the part of the complainant and consistency between the evidence he gave outside the court and in the witness

In CREDLAND v KNOWLER (1951), the accused was charged with indecent assault on a girl aged10 years. The investigating police officer gave evidence that when the parties met, the accused first denied and later admitted association with the girl. The girl and another girl aged 9 gave unsworn evidence of indecency. The prosecution claimed and the defence denied  that  the  lies  told  by   the accused amounted to corroboration of the girls’ story. The court held that the fact that the accused told a lie may be but is not necessarily corroboration. If a man tells a lie when he is spoken to about a certain offence, the fact that he told a lie at once throws grave doubt upon his evidence. If he afterwards gives evidence, it may be a good ground for rejecting the evidence.

However, the court found other strong corroborative statement including that of the accused which corroborated virtually all the children’s evidence except the indecency. On this the court said, it was not necessary to corroborate the whole of the evidence but only some material particular.

Corroboration of evidence of young children

 

One of the thorny issues in law relating to corroboration is the evidence of young children.

 

A conviction based on the uncorroborated unsworn evidence of a child is bad. The question is whether or not an unsworn evidence of a child can be corroborated by another evidence of another child, sworn or unsworn.

It has been argued that evidence which requires corroboration cannot itself corroborate (R. v MANSER, (1934). This argument was overruled in R v HESTER which held that an unsworn statement can only be corroborated by a sworn statement. In essence the unsworn statement of a child may be corroborated by a sworn statement of another child.

Consistently with this trend of thought, the House of Lord also decided that a sworn evidence of a child can corroborate another sworn evidence of another child (DPP v KILBOURNE [1973] AC 729).

 

See R. v CAMPBELL, where the court dealt with the issue of sworn evidence of children and more specifically whether the evidence of children who were assaulted would be corroboration for the evidence of  other  children that  were assaulted. As  explained by  Lord Goddard, CJ.

“The unsworn evidence of a child must be corroborated by sworn evidence; if then the only evidence implicating the accused is that of unsworn children, the judge must stop the case. It makes no difference whether the child’s evidence relates to an assault on himself or herself or to any other charges. An example, would be where an unsworn child says that he saw the accused person steal an article’’.

“The sworn evidence of a child need not, as a matter of law, be corroborated, but a jury should be warned (and where there is no jury the judge should warn himself) not that the jury (or the judge) must find corroboration, but that there is a risk in acting on the uncorroborated evidence of young boys or girls, though the jury (or the judge) may do so if convinced that the witness is telling the truth, and this warning should also be given, where a young boy or girl is called to corroborate the evidence either of another child, sworn or unsworn or of an adult”.

Evidence of an accomplice

 

An accomplice is a person who has been connected in the commission of a crime; a person who, on the evidence, may be convicted of the offence with which an accused is charged. He is involved in the crime but he is not charged; rather he is turned a prosecution witness. He is a principis criminis, neither a co-accused nor an agent provocateur.

An accomplice includes:

 

  • A Participant in the actual crime charged

 

  • A Receiver of property for which the accused is charged with stealing

 

  • A Participant in other  crimes  alleged  to  have  been  committed  by  the accused, where evidence of such other crimes is admissible to prove system or intent or to negative accident.

The following persons may be directly or remotely connected with a crime but are not accomplices:

  • An accused, who testifies on his own behalf in a joint trial, and who incriminates a co- accused: Ukut and others v the state (1968).

 

  • A Bribe giver who meets the monetary demand of bribe taker: R v Usman Pategi (1957), Okeke v the Police (1948); Osidola v COP. (1968).
  • A person, who takes no part in a crime but is merely an eye witness: Queen v Ukut (1960).

See ENAHORO v THE QUEEN (1965) 1 NLR 125

 

  1. was charged with conspiracy with others to commit treason. O was assigned a responsibility. He subscribed to the oath, but declined his role. He did not report to the police. O was a prosecution witness and it was contended that he was an accomplice. The Supreme Court held that O might have been guilty of an offence under a different section of the code for failure to reveal the plot, but this offence is a separate and distinct offence from the conspiracy charged. Accordingly O is not an accomplice.

The Evidence Act Provision.

 

The Evidence Act, Section 198 provides that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Provided that in cases tried by a jury when the only proof against a person charged with a criminal offence is the evidence of an accomplice uncorroborated in any material particular implicating the accused, the judge shall warn the jury that it is unsafe to convict any person upon such evidence though they have a legal right to do so and in all other cases, the court shall direct itself.

The judge must warn himself of the danger of convicting on the uncorroborated evidence of an accomplice who testifies for the prosecution. Having warned himself the judge may convict upon uncorroborated testimony if he believes the evidence adduced by the accomplice.

Compare Odofin Bello v State (1967) and Malayi v State.

 

In Odofin Bello v the State, the Supreme Court on the requirement that the judge must warn himself said:

“The judge must ask himself whether or not he believed the evidence of the accomplice and if he believed it, he must warn himself that it was unsafe to convict on it. He must then look for additional statement or evidence not that of an accomplice rendering it probable, that the story of the accomplice is true and that it is reasonably safe to act on it”.

In Malayi v State, the Supreme Court overruled itself and said that warning without more was sufficient.

 

In the case of R. v OMISADE & ORS. [1964] 1 ALL NLR 233 AT 249, the Supreme court decided that as regards an overt act, it is not necessary that each witness should give evidence as to each overt act. It is sufficient that a number of witnesses are able to give evidence of “snipers,” which all taken together will amount to an overt act.

Nature of Warning

 

Where in practice, corroboration is required,  the  court  must  exercise  extreme caution  and must warn itself. The presence or absence of that warning is a determining factor.

If there is corroboration but no warning, the prosecution must fail.

 

If there is no corroboration but there is a warning, the prosecution succeeds all else being equal. There is no magic formula regarding the warning; and although it is required in practice, it has the force of law. The case of Davis v DPP (1954) gives you a guide as to the nature of warning. In the case, the House of Lords explained that the rule that where a person who was an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury (or himself in the absence of the jury) that, although they (or the judge) may convict on the evidence of the accomplice, it is dangerous to do so unless such evidence is corroborated.

This rule, although a rule of practice, has the force of law. Where the judge fails to warn in accordance with this rule, then, even though there is ample corroboration of the accomplice’s evidence, the conviction will be quashed unless the appellate court is satisfied that no substantial miscarriage of justice has been caused by a breach of the rules.

The warning must be direct and precise. For this reason the court quashed the conviction in

R v PRICE (1968). The warning to the jury in that case was:

 

“When they (the jury) have to take the evidence of an accomplice, they ought to view it with particular care and they ought to look to see whether there is other evidence separate from that of the accomplice which implicates the accused in a material particular…..having had that warning they may accept the evidence of the accomplice and even without corroboration if they think it right”

In 1912 – 1914, the judges formulated the Judges Rules. The rules were designed to guide the police and others who investigate crimes, when questioning any person suspected of committing a crime. The rules are mere administrative directions. They do not have the force of law, but the courts do act on them.

Thus in Evbuowman v Police (1961), a police officer called an accused, read to him a confession, which a co-accused made against him. The accused kept mute and was convicted. On appeal, the court quashed the conviction on the ground that the police officer acted contrary to the judges’ rules. Perhaps a stronger reason is that an accused is not obliged to say anything and the prosecution in the absence of the purported confession had not proved his case beyond reasonable doubt.

A confession that is voluntary does not become inadmissible because the judge rules are not followed. However, the courts may insist on the observance of the rules in order to ascertain the voluntariness of the confession and hence the admissibility of the statement. Thus, failure to observe the rules may found a ground for holding that a confession is involuntary.

You should be aware that it is always permissible for a police officer to question a person in custody with regard to the offence or offences other than offence(s) for which he or she is held. But it is important that the judge rules are followed. In this context “custody” means: “in custody of the police”, R v Buchan (1964), R v Strappen (1952).

THE RULES:

 

In Nigeria there are nine main rules, namely:

 

  • Rule 1: What Questions may be asked

“When a Police Officer is endeavouring to discover the author of a crime, there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not from whom he thinks useful information can be obtained”.

The suspect’s answers to any questions put and any statement that he may volunteer should be reduced to writing. It is important that this procedure be followed for the following reasons:

  1. The suspect may be able to clear himself of
  2. If it is later decided to charge him, his statement will be available to check this story in the witness
  3. It may disclose matters, which open new avenues of

 

  • Rule 2: When to

 

“Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking any question or any further questions, as the case may be.”

  • Rule 3: Persons in Custody

 

“Persons in custody should not be questioned without the usual caution being first administered.”

  • Rule 4: Voluntary Statement

 

“If the prisoner wishes to volunteer any statement, the usual caution should be administered.”

  • Rule 5:

 

  • Formal Caution

 

‘The caution to be administered to a prisoner, when he is formally charged, should be in the following words:

“Do you wish to say anything in answer to the charge? 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”.

Care should be taken to avoid any suggestion that his answers can only be used in evidence against him, as this may prevent an innocent person from making a statement, which might assist to clear him of the charge.

  • Short Caution

 

Note: The words in Rule 5 are only applicable when the formal charge is made and can have no application when a violent or resisting prisoner is being taken to a police station. In that case before the formal charge is made, the short caution should apply, that is to say:

“You are not obliged to say anything, but anything you say may be given in evidence.”

 

In both instances, every suggestion that the statement is to be given in evidence

against its maker must be avoided.

 

  • Rule 6: Statements Prior to Caution

 

“A statement made by a prisoner before there is time to caution him is not rendered inadmissible in evidence merely by reason of no caution having been given, but in such a case he should be cautioned as soon as possible.”

 

  • Rule 7: Questions which may be asked of a prisoner

 

A prisoner or a suspect making a voluntary statement must not be cross-examined, and no questions should be put to him about it except for the purpose of removing ambiguity in what he has actually said. If, however he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week and day of the month which do not agree, or has not made it clear to what individual or what place he intended to refer in some part of his statement, he may be questioned sufficiently to clear up the point.”

  • Rule 8: Persons Jointly Charged

 

“When two or more person are charged with the same offence and statements are taken separately from them, the police should not read the statements to the other persons charged, but each of such persons should be furnished by the police with a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charged desires to make a statement in reply, the usual caution should be administered.”

The West African Court of Appeal in the case of R v. Ajose and others (2 W.A.C.A.

118) has added the following provision to rule 8:

 

“Provided that when the person charged (other than the person who made the statement) is an illiterate, the statement may be read over and interpreted to him apart by some person other than a policeman. Anything said to such reader by the person charged when the statement is read shall not be admissible in evidence against him, but if, after the statement has been so read he shall be desirous of making a statement to the Police in reply, such statement shall be taken only after  the usual caution has been administered.

Rule 9: Statements

 

“Any statement made in accordance with these rules should whenever possible be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish.”

The judges rules do not apply to interrogation of members of the Armed and the Police Forces by their superior. (R.v. Harris – Rivott, 1956). In R. v Bass (1955), a Criminal Court of Appeal has expressed the opinion that if at the time the police questioned the accused, he was in custody and no caution had been administered to him, the jury should have been directed to consider whether, despite a breach of the judge’s rules, the accused had made his statements voluntarily. The conviction was quashed because the jury had not been so directed.

 

Where there is no jury as in the case of Nigeria, the judge must caution himself as to whether, despite the non-observance of the judges rules, the statement can be said to be voluntary. It should be on record that he has so cautioned himself.

Application of the Judges Rules

 

R v Payne (1963)

 

Following a car crash, P. was taken to the police station. He was asked and he agreed to be medically examined by the police doctor. Police informed P that it would be no part of the doctor’s duty to examine him in order to give an opinion as to his unfitness to drive.

Quashing his conviction for drunken driving, the appellate court held that if P had realised that the doctor would give evidence on that matter, P might have refused to be medically examined, and that the judge had exercised his discretion wrongly.

The mere fact that a confession is made in answer to a question put by a police officer is not sufficient to render the confession inadmissible. However, where the accused refused to answer a question on the ground that his or her answer tend to incriminate him or her and he or she is improperly compelled to answer it, such a confession would not be voluntary. The judge’s rules do not necessarily render a voluntary confession involuntary because it  was obtained in violation of the judge’s Rules, but the trial judge has a discretion to exclude it.

In R v Voisin (1918) A corpse had been found with the words “Bladie Belgiam” written on a piece of paper. The police without cautioning the accused, asked him to write these words. He did but the police had not charged him and it was apparent that he had written the words voluntarily making the same spelling mistakes. Held it was tantamount to a confession.

The court may come to the same conclusion in respect of the confession made in the belief that the answer to the question by the police was not being recorded in writing if he would not have answered had he known they were being recorded.

R.V. Stewart (1970)

 

A constable disguised as a prisoner and was put in the cell next to the accused person charged with breaking for purpose of eavesdropping. The prosecution sought to put in evidence, the evidence of over-hearing of a discourse about the concoction of an alibi and court held he was entitled.

In the same way, fingerprints obtained from the accused person with or without caution can be put in evidence, if it is relevant, unless it was obtained oppressively, by false representation, bribe or threat (Callis v Gunn, 1963).

 

The accused in R.v. Ogwuogo (1936) made a statement to the police. He was cautioned in a native dialect. He was convicted for murder. The accused did not understand the caution. Held the court must be satisfied that the statement is free and voluntary. If it is not satisfied, the onus is on the prosecution.

In dealing with illiterate suspects therefore, one must ensure that they understand what the caution is all about. There must be positive evidence that it was administered and understood.

An accused cannot be forced to present himself or herself for a photograph. He requires to be cautioned. See Ugama v. R (1959) 4 FSC, 218.

You should not forget that the judges rules offer safeguards to ensure that confessions are freely given and voluntary, that the accused is properly cautioned. They were to ensure the absence of any suggestion that a confession has been induced by threats or promises from someone in authority.

As a matter of practice, the Police Officer accepting a confession is obliged to take the accused and the statement before a superior police officer (i.e. an Assistant Superintendent or above) as early as possible. The Superior Police Officer is required to satisfy him or herself that the statement is free and voluntary. If the police officer is satisfied, he must ask the accused if he made the statement and whether it is true. If the accused admits, the superior police officer endorses and signs the confession to that effect.

The mere fact that superior police officer has not endorsed a confession does not render it inadmissible. However, such endorsement has the value of assuring the court that it has been properly taken.

 

EXAMINATION OF WITNESSES

 

Procedure

 

To commence a criminal proceeding, a charge or information must have been filed and a copy served on the accused. At the trial date, the court is set, the accused is called into the dock; he is asked if he understands English language or language of the court and of the charge. If not, an interpreter is provided. The charge or information is read aloud to the accused and explained.

When the accused admits that he has understood the charge, he elects trial, (in appropriate case) and pleads, where he or she submits to court’s jurisdiction, guilty or not guilty. He may keep mute to malice, and the court enters a plea of not guilty.

Examination in Chief:

 

The court is cleared out of sight and hearing of all the witnesses in the case-S212. The Prosecution opens his case; he may or may not make any opening address. He calls his first witness. The initial examination of a witness by the party who calls him is called “Examination – in – chief”. Evidence Act 2011, Section 214.

The witness takes the oath by the Holy Bible, The Qur’an, or Iron or affirms as the case may be Ss 205-208 The Prosecutor examines the witness in chief, eliciting from the witness all such facts as tend to prove his case and which are within the personal knowledge of the witness; he guides the witness against irrelevancies or facts which are inadmissible.

Leading Questions

 

Leading questions are questions which suggest their own answers or assume the existence  of disputed facts which have not yet been proved in evidence. They are not generally allowed in examination-in-chief. (Section 221, Evidence Act) Thus you do not ask:

  • Was the Accused at Ibadan on the day in question?
  • Was the Accused driving on the right side of the road?

Rather, you ask: By which side of the road was the accused driving?

  • You may ask where was the Accused on the day in question?.

Questions which require answers “Yes” or “No” are most likely to be leading question.

 

This is not to say that every leading question is bad. A Leading question may be permissible if:

 

  • It relates merely to introductory matters or identification
  • It is a fact which is not in dispute
  • It is a fact/ which in the court’s opinion, had already been proved or put in evidence by the other.
  • It is necessary,

 

  • If the witness is forgetful or hostile, the court may allow him to refresh his memory of the subject matter on which he is about to testify or give evidence by allowing him to look at a document made by the witness himself or by someone to the knowledge of the witness and while the matters recorded were fresh in the recollection of the witness (say within the week/ or two of the events).
  • It is necessary to lead the mind of the witness to the subject matter on which he is called to give evidence. See section 220 (3)

Object of Examination- in-Chief

 

The object of Examination –in-chief is to adduce all the material facts as far as the witness can remember and in his own words to establish the party’s case – not necessarily all that the witness knows.

 

A Hostile Witness

 

A party who calls a witness holds out that the witness he calls or intends to call is a person to be believed on oath or affirmation. It is thus contradictory in terms to adduce evidence to impeach or discredit a party’s own witness, and hence give evidence of bad character. See Evidence Act section 230.

A situation may however arise, where the witness has been bought over or afflicted with malice or annoyance and in the judge‘s opinion shows animus against the party that called him. Accordingly, he may be induced to withhold facts, which are favourable to his party, give contradictory evidence of the party or show a reluctance to tell the truth. One who  does this becomes a “hostile witness” If this behaviour becomes apparent, the party that called him may ask for and the judge may grant leave to treat him as a hostile witness. The judge will refuse leave to treat the witness as hostile unless he is convinced that the witness is biased or poised to damage the party who called him or her. The party producing the witness may thereby be entitled to discredit or contradict the witness. To this end, the witness may be asked if he has made any statement at other times – a statement inconsistent with his present testimony. Before doing so, the party would have established the circumstances or occasion when the statement was made.

The witness must be asked whether or not he made such statement and if he denies, it may be proved that he did. The hostile witness may also be cross examined as to his previous statement in writing or give a contradictory proof. The judge may request the production of the statement for his inspection and use as he may think fit.

The evidence so adduced is not a proof of the facts contained in it. Its purpose is merely to discount the hostile witness.

 

 

 

Cross Examination- Sections 216, 217, 219, 232, etc

 

On completion of the examination – in – chief, the witness is cross-examined by the other side. The examination of a witness, by a party other than the party who calls him is called: ‘cross-examination’. The objectives of cross examinations are:

  • To test the accuracy of the evidence-in-chief.
  • To weaken or destroy examination-in-chief, if
  • To obtain evidence that will assist the party’s own case by the testimony of the opponent’s
  • To show that the witness is unreliable and for that purpose may attack his testimony or credibility.
  • To obtain necessary facts that may be favourable to a party’s case or to weaken or dilute the strength of evidence –in-chief.

 

The scope of cross-examination is wider than that of examination-in- chief. Cross examination is not limited to questions raised in examination-in-chief; leading questions are allowed as are questions designed to discredit the character of the witness. One may be cross examined as to previous statement one has made relative to the subject matter

Who may be cross examined? By whom?

 

The witness who may be examined includes

 

  • The witness who has been examined-in-chief
  • A sworn witness, whether or not examined in chief
  • Witness as to character
  • Witness called by co-accused
  • The accused where he testifies

Some witnesses may or may not be cross examined. Examples are witnesses who are:

 

  • called by a genuine mistake
  • unable to give any evidence material to the

 

The normal procedure is for the adverse party to cross-examine the witness called by the other party. Where there is more than one plaintiff, defendant or accused, each must be given opportunity to cross examine.

Each of the accused persons is allowed to cross-examine any witness called by co-accused. Where an accused gives evidence in chief, every co-accused has right to cross-examine him.

 

 

The witness under cross examination may be asked question to:

 

  1. Test his accuracy or veracity
  2. Discount his identify and position in life
  3. Test his qualification or any special ability which he claims in the case of witness
  4. Injure his credit as a truthful

 

Where a question during cross examination is directed at a witness’s credit; whatever answer the witness gives is final. No evidence in rebuttal is admissible. These are the following exceptions to this general rule, when rebuttable evidence may be allowed.

  • Where a witness denies bias or partiality
  1. If the witness denies a previous inconsistent statement
  2. If the witness denies a previous conviction
  3. If the witness denies that he is a notorious liar or has such a generally bad reputation for veracity that he is not to be believed on oath

 

Illustration

 

React to the Prosecution’s proposal to call Adams to testify as to the charge before the court and the Accused’s objection and intention to call witnesses to prove that Adam’s statement on Oath is not to be believed.

In introducing Adams as a witness the prosecution represents to the Court that Adams is a witness to be believed on oaths or affirmation. According to Lord Goddard, CJ,:

“(The fact) that witnesses can be called to say that they would not believe a particular witness called by the other side, whether for the persecution in a criminal case or for a party in a court case, is in the opinion of the court, undoubted. “

That credit of the witness may be impeached by the opposite side, by the evidence of persons who swear that they, from that knowledge of the witness, believe him to be unworthy of credit upon his or her oath.

 

Such persons may not upon their examination –in-chief give reason for their belief but they may be asked that reason in cross examination and their answers cannot be contradicted”

Limitation on the scope of Cross-Examination

 

Cross examination is not a channel for:

 

  1. Questions which are intended to insult or annoy either the witness or any other person
  • Questions put forward only to impugn the witness’s character
  • Affirmative evidence to contradict answers given in cross examination to questions directed only to
  1. Questions which affect the credibility of a witness by attacking his character, but which are not otherwise relevant to the actual inquiry unless the imputation conveyed by the question is well founded or
  2. Questions relating to matters so remote in time or of such a character that they would not materially affect the credibility of the

 

 

Re- Examination

 

When the cross examination is completed, the party who called the witness has the right to re-examine him. Where a witness has been cross-examined and is then examined by the party who called him, such examination is called ‘re-examination’: Evidence Act, Section 214 (3).

A re-examination follows a cross-examination. The latter follows the examination–in- chief. Re-examination is the right of the party that called the witness and it exists once there has been cross examination.

A re-examination is confined only to matters arising in cross-examination. New evidence may not be introduced without the leave of court. Leading questions are not also allowed.

The object of re-examination is to repair, as much as practicable, the damage done during cross examination and to clear up any misunderstandings of ambiguities that may have arisen during cross examination.