Reading Material for Law of Evidence

Reading Material for Law of Evidence By Ofa Joseph (07042357789)

Carefully Researched and Summarized each topic using Class Notes, standard textbooks on Law of Evidence, and various online materials.

Table of Content

1. Meaning, Scope & Classification of Judicial Evidence
2. Sources of Judicial Evidence
3. Facts Which Need Not Be Proved by Evidence
4. Wrongful Admission and Rejection of Evidence
5. Relevancy and Admissibility of Evidence
6. Estoppel
7. Presumptions
8. Opinion Evidence
9. Character Evidence
10. Official and Privileged Communications
11. Similar Facts Evidence
12. Hearsay Evidence
13. Competency and Compellability

Meaning of Judicial Evidence

Evidence has no definitional exactitude due to its complexity and variability.

However, it has been defined by many scholars, authors and writers.

Thus, in Akintola & Anor V Solano, the Supreme Court attempted the meaning of evidence when it stated as follows:

“If a thing is evident, it does not require evidence.

What therefore is evidence?

Simply put, it’s the means by which any matter of fact the truth of which is submitted for investigation may be established or disproved.

Evidence is therefore necessary to prove or disprove an issue of fact.”

Furthermore, according to Phipson, evidence means the testimony, whether oral, documentary or real, which may be legally received in order to prove or disprove some facts in dispute.

 Scope of Judicial Evidence

Scope means the subject matter of a thing.

According to Professor Noakes, the scope of judicial evidence consist of:

1. Facts which are legally admissible and
2. The Legal means to prove such fact

According to Micheal Hirst Law of Evidence includes rules regulating the means and method by which facts may be proved to the satisfaction of the court.

Judicial Evidence is therefore, the VEHICLE, the MEANS by which facts are proved in court.

It also regulates the burden, standard of proof and the production of evidence in proof of the existence or non-existence of facts in judicial proceedings.

By virtue of Section 258 of the Evidence Act 2011, a FACT is anything perceivable by the senses or any conscious mental condition.

Accordingly, a fact is proved when the court believes it exist, it’s disproved when the court believe it does not exist and it’s not proved when it neither proved nor disproved.

 Classification of Judicial Evidence

Judicial evidence may be classified into various types:

Cross & William’s Classification

1. Direct and Circumstantial
2. Primary and Secondary
3. Insufficient, Prima facie or Conclusive

Nwadialo Classification

1. Hearsay Evidence
2. Oral and Documentary Evidence
3. Primary and Secondary
4. Real Evidence

Classification Under the Act

1. Oral Evidence
2. Documentary Evidence
3. Real Evidence

Oral Evidence

Oral Evidence is also referred to as Testimonial Evidence and it’s the commonest type of evidence.

Oral evidence is defined as statement and assertion of a witness in court offered as proof of the truth of that which is asserted.

Oral evidence according to Section 176 of the Evidence Act 2011, include signs made by a dumb witness and must be direct and all facts except content of document may be prove by oral evidence.

2. Real Evidence

Nokes defined real evidence as “material objects other than document produced for inspection of the court.” In real evidence you can see the REAL THING and it may be produced in court for the court to examine.

3. Documentary Evidence

Documentary Evidence is a document offered to the court in proof of any fact in issue and it may be divided into Primary and Secondary.

Documentary evidence according to Section 258 of the Evidence Act 2011, include books, maps, plans, drawings, photographs, etc.

The Primary Evidence is the document itself that is the original document in which the facts to be proved are stated WHILE the Secondary is the copy of the original document or an account of the content of the original document.

4. Circumstantial Evidence

Circumstantial evidence is evidence not of the fact in issue but of the other facts from which the fact in issue can be inferred.

Before an accused can be convicted based on circumstantial evidence, such evidence must be irresistibly, mathematically point to one direction that the accused committed the offence.

Thus, in Chima V Ijiofor, the accused was convicted based on circumstantial evidence.

5. Direct Evidence

This is evidence of a witness who saw an accused committing the crime and it’s implies two things; i.e. actual evidence of a fact in Issue and Evidence as perceived by witness.

Thus, in Ahmed V The State, the court held that direct evidence is the evidence of a fact in issue.

Facts That Need Not Be Proved by Evidence

There are certain facts which need not be proved by evidence:

1. Formal Admission
2. Judicial Notice
3. Facts of Common Knowledge

1. Formal Admission

Formal admission according to Section 123 of the Evidence Act 2011, is the concession of the truth of an alleged fact in civil proceeding, it relieve the other party from proving those facts and it may be Formal or Informal.

ADMISSION is confined to Civil Proceedings while CONFESSION is used in Criminal Proceedings.

Formal admission may be either by a party to the proceedings or his agent (Legal Practitioner).

Thus, in Nnadi Chikere V George Okegbe, the court held that “When a counsel makes an unequivocal admission in court on behalf of his client, the court is entitled to accept such admission and act accordingly”.

Furthermore, admission may be made either before or during proceedings in court.

A mere concession of a point out of multiple does not means admission.

E.g., agreeing you wore white but was not at the scene of the incident.

2. Judicial Notice

Judicial Notice are facts that are well known and clearly celebrated, undisputable and uncontestable.

Thus, in Section 122 of the Evidence Act 2011, it’s provided that “No fact of which the court must take judicial notice need be prove.”

The court also affirmed this decision in the case of Saraki V Kotoye.

3. Facts of Common Knowledge Notice

According to Section 124 of the Evidence Act 2011, fact that is so known or it’s of common knowledge, does not need further evidence.

E.g., people eat dog.

 Sources of Nigerian Law of Evidence

The following are the sources of Nigerian law of Evidence:

1. The Constitution
2. The Evidence Act
3. Local Statutes
4. The English Common Law
5. Regulation made by Attorney General
6. Judicial Decisions and Opinion of Jurist

The Constitution

The 1999 Constitution of Nigeria is the grundnorm from which all other laws derive their validity.

Thus, Section 36 provides inter alia that every person is entitled to a fair hearing.

For example, if one party is allowed to call a witness, the other party must also be given the same opportunity.

Furthermore, Section 36 (11) provides that no person shall be compelled to give evidence at trial, thereby protecting a witness against self-incrimination.

These provisions make it evident that the Constitution serves as a veritable source of the Nigerian law of evidence.

2. The Evidence Act

The main source of the Nigerian Law of Evidence is the Evidence Act 2011 (As Amended 2023).

The Act contains 258 Sections and it’s divided into 16 parts.

Before now, The Evidence Act 2004 was the primary source of the Nigerian Law of Evidence.

The act was passed as Evidence Ordinance in 1943 and came into operation in Nigeria in 1945.

3. Local Statues

Section 3 of the Evidence Act 2011 provides for the admissibility of any evidence made admissible by other Nigerian legislation.

Other Nigerian legislation refers to federal laws, since evidence is a matter within the exclusive legislative competence of the National Assembly.

4. The English Common Law

The English Common is a source of Judicial Evidence since common law principles are applicable in Nigeria.

Thus, in Onyeanwusi V Okukpara, the court held that where the Evidence Act is silent, the common law will apply.

However, the Evidence Act is superior to common law, and in the event of a conflict, the Evidence Act will prevail.

Furthermore, where there is a conflict between the Evidence Act and the Constitution, the Constitution prevails. 

5. Regulation made by Attorney General

By virtue of Section 255 of the Evidence Act 2011, a minister charged with the responsibility of Justice may from time to time make regulations by prescribing further conditions to admissibility of evidence.

However, such regulations cannot limit or circumscribe the express provisions of the Act.

6. Judicial Decisions & Opinion of Jurist

This is another source of the Nigerian Law of Evidence and it’s through the Principle of Stare Decisis (let the decision stand).

Judicial decisions, case law or precedent and writing of distinguished scholars can be identified as a source of Nigerian Law of Evidence. 

Wrongful Admission and Rejection of Evidence

By virtue of Section 1 (b) of the Evidence Act 2011, any fact that is irrelevant to the facts in issue is not admissible.

When evidence is tendered, before it’s admitted or excluded, either of the parties can object to its admission on various grounds.

The court will then consider such objections and either accept or reject the evidence.

Thus, in Agagu V Mimiko, it was held that if evidence is admitted at the trial court without objection or any consent of the parties, then it would be within the right of the trial court to act on it.

Furthermore, in Omomeji V Kolawole, the court held that wrongful admission of evidence or wrongful exclusion will not result in the reversal of the decision of the trial court.

• It must be further noted that any inadmissible evidence that is admitted would be expunged even on appeal.
• Section 251 of the Evidence Act 2011, provides that wrongful admission of evidence shall not be a ground for reversal of any decision and such decision would have been the same if the evidence was not admitted.

If Evidence is wrongfully admitted the following maybe done:

• Allow the decision to still stand, if the evidence cannot be held to have affected the decision.
• Reverse the decision on Appeal if the wrongful admission or exclusion occasioned a miscarriage of justice.
• Court may order for a retrial where refusal would occasion a greater miscarriage of justice. 

Relevancy and Admissibility

The inclusionary and exclusionary rules of evidence is provided in Section 1 of the Evidence Act 2011, which serves as a roadmap for determining what is admissible in evidence and what is not.

1. Inclusionary Rule of Evidence

A litigant in any suit or proceeding may give evidence of facts in issue and facts declared relevant by the Act.

This is the inclusionary rule of evidence.

Thus, Section 1 of the Evidence Act 2011, provides that “Evidence may be given in any suit or proceeding of the existence or non–existence of every fact in issue and of such facts as are hereinafter declared to be relevant, and of no others.”

From the above provisions, in any suit or proceeding, evidence that is admissible include:

• Facts in issue
• Facts relevant to the fact in issue

1. Facts in Issue

According to Section 258 of the Evidence Act 2011, a fact in issue is “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.”

Furthermore, a fact in issue is the subject matter of a given suit.

2. Facts Relevant to the Fact in Issue

Facts relevant to the fact in issue are those facts that are:

1. Logically connected
2. Apply to the matter at hand
3. Not too remote

According to Section 4 – 13 of the Evidence Act 2011, facts relevant to the fact in issue include:

1. Facts forming part of the same transaction
2. Facts showing motive, preparations and previous conduct
3. Facts necessary to explain or Introduce relevant facts
4. Res Gestae

1. Facts Forming Part of the Same Transaction

According to Section 4 of the Evidence Act 2011, these are facts which though not in issue but are so connected with a fact in issue as to form part of the same transaction even if it didn’t occur at the same time and place.

This fact is admissible even though it didn’t occur contemporaneously with the fact in issue.

2. Facts Showing Motives, Preparations and Previous Conduct

According to Section 6 of the Evidence Act 2011, a fact is relevant and admissible if it shows motive or preparation for the fact in issue.

E.g., a case of murder, if there’s evidence that the defendant was propelled by Hatred, malice it will be relevant to show motive.

3. Facts Necessary to Explain or Introduce Relevant Facts

These are facts that necessary to explain or introduce relevant facts in issue.

4. Res Gestae

According to Section 4 of the Evidence Act 2011, these are facts which though not in issue but are so connected with a fact in issue as to form part of the same transaction.

However, the following conditions must be met:

1. It must be contemporaneous with the fact in issue. (In Sunday Akpan Vs The State, the statement made by the deceased “Sunday has killed me” was admissible).
2. The statement must explain the fact in issue
3. The declaration must be made either by the actor or the victim

2. Exclusionary Rule of Evidence

Though admissibility is predicated on relevancy, not all relevant facts are admissible but all admissible facts are relevant.

This is evident in the proviso (a) (b) of section 1 of the evidence Act 2011, which provides that not all relevant facts are admissible.

A fact may be Relevant Yet Inadmissible if:

• It is excluded by law and it’s too remote to be material.

Estoppel

In Evans V Bartham, Lord Wright defined Estoppel as “a rule of evidence that prevents the party from denying the existence of a fact.”

Estoppel is also a rule of justice that prevent a person from denying the existence of such fact.

Thus, in Cave V Mills, the court held inter alia that a man shall not be allowed to blow hot and cold at the same time.

This implies that a man will not be allowed to approbate and reprobate at the same time.

Estoppel has also been regarded as;

1. Estoppel As a Rule of Evidence
2. Estoppel As a Rule of Substantive Law
3. Estoppel As a Matter of Pleading and
4. Estoppel As a Formal Irrebuttable Presumption of Law

1. Estoppel As a Rule of Evidence

Estoppel is a rule of evidence because when a person is estopped from giving certain evidence, such evidence becomes inadmissible.

Thus, in Low V Bourverre, the court held that that estoppel is only a rule of evidence, you cannot found an action upon estoppel.

2. Estoppel As a Rule of Substantive Law

Since defence may be entirely based on estoppel, it can be rightly regarded as a rule of substantive law.

3. Estoppel As a Matter of Pleading

Pleading is the process of frontloading; this include statement of claims, statement of defence and reply to statement of defence, etc.

A party who wishes to rely on estoppel must raise it in its pleadings and state relevant facts that gave rise to it.

Since estoppel must be pleaded before a party can successfully rely on it, then it’s correct to say it’s a matter of pleading.

4. Estoppel As a Formal Irrebuttable Presumption of Law

A presumption is said to be irrebuttable if no fact is admissible for the purpose of rebutting it.

E.g., matters that have been decided and concluded, you cannot re-litigate, you can only appeal.

Estoppel whether as a rule of evidence, substantive law, a matter of pleading, or formal irrebuttable presumption of law is founded on principle of justice.

Classification or Types of Estoppel

There are four classification or types of Estoppel:

1. Estoppel by Record
2. Estoppel by Conduct
3. Estoppel by Agreement and Estoppel by Deed

1. Estoppel by Record

Once a court of record has rendered a final decision on an issue, no party can re-litigate on such matter provided there is no miscarriage of judgement.

A party is therefore estopped from re-litigation.

This principle forms the foundation of estoppel by record which is also known as estoppel Per rem judicatum. 

Types of Estoppel by Record

According to Section 173 of the Evidence Act 2011, estoppel by record is divided into two, namely:

1. Issue Estoppel and
2. Cause of Action

1. Issue Estoppel

Issue estoppel arises when a court of competent jurisdiction has already decided a fact or issue and the same fact or issue is brought in subsequent proceeding between the same parties.

The parties are therefore estopped from re-litigating the same fact or issue, as litigation must have an end, and no one should be sued twice on the same matter.

Thus, in Hill V Hill, a Wife petitioned for dissolution of marriage on ground of CRUELTY and it was dismissed.

The Husband subsequently brought an action against the Wife on ground of DESERTION.

The Wife was estopped from proving those facts since those issues had been dealt with and determine in the first proceeding.

Accordingly, availability of better evidence will not defeat the plead of issue estoppel.

This is applicable even to a case that has reach final determination, provided one or two fact or issue already been decided.

2. Cause of Action Estoppel

Cause of action estoppel is also known as Inter Parties Estoppel.

It prevents a party to an action from asserting or denying the existence of a particular fact that was already determined in a previous judgment.

Whenever a cause of action is submitted for adjudication and it has been determined by a court of competent jurisdiction, the parties cannot re-submit the same cause of action for re-litigation in a fresh proceedings.

This is only where there is a final decision on a matter.

Conditions for the Operation of Estoppel by Record

For the operation of estoppel by record, the following conditions must be met:

1. Same parties
2. Issues and subject matter must be the same
3. Competence of Court
4. Judgment Must be Final, Subsisting and on Merit
5. Fraud or Collusion

1. Same Parties

The parties in the previous proceeding must be the same with the parties in the new proceeding.

Who are the parties?

These are parties in the previous proceedings and their privies.

Thus, in Oyelakin Balogun V Moses Adeob, it was held that Privies include all those who are related to the parties in blood, interest and title of the subject matter.

The subject matter of both the previous and new suit must be the same.

Thus, in AG Nasarawa V AG Plateau State, the court held inter alia that where the plead of estoppel by record is raised, the court study the pleadings and judgement in the previous proceedings to determine whether the subject matter or issues are the same.

2. Competence of Court

For previous judgment to create estoppel, it must have been delivered by a court of competent jurisdiction and if it was given without jurisdiction, it’s a nullity and estoppel by record cannot operate.

The ESSENTIAL CONDITIONS that must be satisfied was established in Madukolu V Nkemdilim to include:

• The court must be properly constituted with qualified members and no member is disqualified.
• The subject matter must be within the jurisdiction and no feature in that case that prevents a court from exercising jurisdiction.
• The case must follow due process of the law and fulfill all conditions precedent.

3. Judgement must be Final, Subsisting and on Merit

A final judgment is a judgment that has not been upturned either by the same court or higher court.

It brings an end to rights of the parties in action.

The judgement must be on merit which means that both parties must have been heard.

4. Fraud of Collusion

If a judgment is obtained by fraud, collusion or illegality, plea of res judicata will fail.

However, if a judgement was wrongly delivered, it will not prevent the operation of estoppel because a court which has jurisdiction to hear and determine a case has jurisdiction to err.

2. Estoppel by Agreement

Section 170, 171 and 172 of the Evidence Act 2011, encapsulate the principle of estoppel by agreement.

This form of estoppel is based on the agreement of parties.

Hence, none of the parties is allowed to deny the existence of such agreement.

• By virtue of Section 170 of the Evidence Act 2011, a person is estopped from denying that the person to who he had earlier paid rent is not his landlord.
• By virtue of Section 171 of the Evidence Act 2011, no agent or Bailee is permitted to deny that the goods entrusted to them does not belong to the Bailor.
• By virtue of Section 172 of the Evidence Act 2011, when a person signs a bill of lading, they acknowledge the goods description, quality and condition, they are estopped from later denying the accuracy of the information on the bill of lading. (A bill of lading is a document of title, it’s like a receipt, and it gives ownership to the goods). 

3. Estoppel by Conduct

Section 169 of the Evidence Act 2011, provides for estoppel by conduct.

This is a type of estoppel that arises as a result of a representation made by one another.

Thus, in AG Rivers State V AG Akwa Ibom, the court held that the doctrine forbids a person from making a representation by way of conduct and denying it later.

In Chukwuma V ifelonye, the court highlighted the conditions that must be satisfied.

1. That there was a false representation or concealment of material facts
2. That the representation was known to be false by the party making it or he was negligent
3. That the representation was believed to be true by the person to whom it was made
4. That the party making the representation intended it to be acted upon
5. That the party asserting estoppel acted on the representation in a way that will result in a substantial prejudice.

4. Estoppel by Deed

 A deed is a declaration or statement of fact conveying ownership or transferring rights, interest.

This estoppel is to prevent a party who executed a deed from denying the facts stated in the documents.

Thus, in Bowman V Taylor, the court held that if a party has asserted a specific fact, it’s impossible to deny it.

Below are some of the conditions that must be satisfied:

1. The estoppel applies only to litigation arising on the deed.
2. The deed must be valid in law.
3. It must be confined to parties. 

 Presumptions

Presumption is a conclusion which may or must be drawn from given set of facts until the contrary is proved.

Types of Presumption

1. Presumption of Law
2. Presumption of Facts

Presumption of Law

Presumption of Law is one prescribed by the law and must be drawn until the contrary is proved.

Types of Presumption of Law

In Abubakar V Yar’adua, the court highlighted the two types of presumption of law to include:

1. Irrebuttable Presumption of Law
2. Rebuttable Presumption of Law

1. Irrebuttable Presumption of Law

A presumption is said to be irrebuttable if no fact is admissible in the purpose of rebutting it.

Such Irrebuttable presumption of Law is Absolute, Unquestionable, Conclusive and Incontrovertible.

An Example of an Irrebuttable Presumption of Law Established in Section 30 of the Criminal Code includes: 

1. That a person under the age of Seven (7) is not criminally responsible for an Act or Omission.
2. That a make person under the age of Twelve (12) is incapable of having Carnal Knowledge which means Rape cannot be brought against such person.

2. Rebuttable Presumption of Law

A rebuttable presumption of law draws a conclusion from a given set of facts until the contrary is proved.

Types of Rebuttable Presumption of Law 

Some of rebuttable presumption of Law include:

1. Presumption of Innocence
2. Presumption of Validity of Marriage
3. Presumption of Sanity
4. Presumption of Death
5. Presumption of Negligence 

1. Presumption of Innocence

Presumption of innocence is provided for in Section 36 (5) of the Constitution of Nigeria 1999 which provides inter alia that “Every person charged with a criminal offence shall be presumed innocent until he is proved guilty.”

By this presumption, every accused person regardless of the gravity of the offence is presumed innocent in the eyes of the law with no obligation to prove his innocence.

The burden of proof to rebut this presumption will shift to the prosecution.

Thus, in Uche-Williams V The State, the court held that it’s the duty of the prosecution to prove the charge against the accused beyond reasonable doubt.

2. Presumption of Validity of Marriage

Where it’s shown that a man and a woman went through an apparently regular ceremony of marriage either under the Customary or Statutory, there is rebuttable presumption of the validity of the marriage.

The court affirmed this decision in Piers V Piers, were marriage ceremony was celebrated in a Private House and not in a Registry or Church.

Furthermore, where a man and woman cohabitate there is presumption of marriage until the contrary is proved.

3. Presumption of Insanity 

Under Section 27 of the Criminal Code, there is a rebuttable presumption that every person is of sound mind until the contrary is proved.

This implies that every accused person is of sound mind and ipso facto capable of standing trial until the contrary is proven.

Thus, in Ayinla V The Queen, it was held that the presumption is rebutted when the accused shows on the balance of probability that he was insane.

4. Presumption of Death 

By virtue of Section 64 of the Evidence Act 2011, a person is presumed dead if it’s not heard of for Seven (7) years by a person who ordinarily would have heard of and from him.

This presumption does not extend to age or time of death rather at some time within the period.

5. Presumption of Negligence

The presumption of negligence is usually expressed in the Latin maxim, Res Ipsa Loquitor which means “The Thing Speak for itself.”

Negligence means the failure or omission to do something a reasonable man under similar circumstances could have done.

The presumption is raised where the plaintiff is injured as a result of something under the control of the defendant due to lack of care.

Furthermore, any person who alleges negligence must prove the three essential elements, which include:

1. That the defendant owed him a duty of care
2. That he breached the duty of care
3. That the plaintiff suffered damages due to that breach

2. Presumption of Fact

 Presumption of fact is an inference from circumstantial evidence which is usually resorted to in the absence of direct evidence.

Types of Presumption of Fact

Section 167 of the Evidence Act 2011, highlights some of these presumption to include:

1. Presumption Relating to Stolen Property
2. Presumption of Continuance
3. Presumption As to Course of Business
4. Presumption of Withholding Evidence
5. Presumption Relating to Common Law

Presumption Relating to Stolen Property

Section 167 (a) of the Evidence Act 2011, provides a presumption 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.

Thus, in Eyisi V The State, the court invoked this presumption where the accused was seen with stolen goods the same night of the theft.

2. Presumption of Continuance

Continuance is the state of remaining in existence or operation.

According to Section 167 (b) of the Evidence Act 2011, if a thing or person shown to have been in existence at some specific period maybe presumed to be in existence soon thereafter.

Thus, in Queen V The African Press Ltd, the accused person was presumed guilty for publication of sedition matter.

The publication was on 17^th April 1956 and he was editor of the newspaper on 16^th of April 1956 and on the 20^th he was still working there as editor.

3. Presumption of As to Course of Business

By virtue of Section 167 (c) of the Evidence Act 2011, the court may presume a particular procedure that is usually adopted to accomplish a particular task or transaction if the procedure is usually adopted.

4. Presumption of Withholding Evidence

Section 167 (d) of the Evidence Act 2011, provides that if a party to a suit withhold evidence which is supposed to produced, it may be presumed that the evidence will not be in his favour.

However, for this to apply, it must be shown that the witness exist, that he can be called and his evidence is material.

Opinion Evidence

Opinion is an inference of fact, it’s a view, ideas and a conclusion.

According to Section 67 of the Evidence Act 2011, and as a general rule, the opinion of a witness as to the existence or non-existence, prove or disprove of any fact in issue or facts relevant to the facts in issue is irrelevant and ipso facto inadmissible.

Accordingly, a witness can only testify to the fact known to him and not to his opinion.

The rationale is predicated on the fact that opinion evidence is judgmental and it’s an inference.

Moreover, it’s the function of the court to draw inference and not the witness.

Exceptional circumstances where opinion evidence is admissible.

1. The evidence must be conclusive and recognized by law
2. It’s accepted because it’s evidence of an Expert or Non-expert with knowledge, experience and competency.
3. If opinion evidence is admissible, the ground is also admissible.
4. The opinion must be direct.

However, the court is not under any imperative duty to accept such opinion evidence without any form of interrogation.

This is because some opinion ascribe minimal probiotic value.

 Where Opinion Evidence is Admissible, the exception to the general rule can be divided into two namely:

1. Opinion of Experts
2. Opinion of Non-Expert

1. Opinion of Expert

Evidence Act permits the reception of opinion of expert when the court has to form an opinion on:

1. Foreign Law (ii) Customary Law or Custom (iii) Science or Art (iv) As to Identity of Handwriting or Finger Impression

Who is an Expert?

In, Azu V The State, the court held that for one to qualify as an expert, the witness must be especially skilled in the field in which he is giving the evidence and the test must always be the knowledge and experience of the witness.

The skill required of an expert need not be by academic qualification or through systematic training.

It must further be noted that before a witness testifies as an expert, he must first state his qualification and experience.

The court is not mandated to accept every opinion if not consistent with common sense or simply lacks merit.

This was illustrated in the case of AG Federation V Ogunro where the court rejected medical expert report.

1. Opinion As to Foreign Law

Foreign law is any law other than laws of Nigeria.

According to Section 69 of the Evidence Act 2011, where there is a question as to foreign law, the opinion of expert who in their profession are acquainted with such law are admissible.

It must be noted that you must not necessarily be a legal practitioner.

2. Opinion on Customary Law & Custom

Customary law are unwritten laws or rules based on the tradition and customs of the people.

Under Section 70 of the Evidence Act 2011, opinion of traditional rulers, chiefs and other persons are relevant and ipso facto admissible to prove the existence of a given custom.

3. Opinion on Point of Science or Art

When the court has to form an opinion upon a point of science or art, the opinion of a person especially skilled in that area is admissible.

The term science and art are used to include medical, physical and other sciences.

4. Opinion As to Handwriting and Finger Impression

Section 68 of the Evidence Act 2011, allows the court to received evidence of expert when forming an opinion on handwriting or finger impression.

Similarly, when there is issue as to whether a particular document was authorized by a named person, an expert can give opinion evidence to identify the author. 

Official & Privileged Communication

A Testimonial Privilege is a right not to testify on a particular matter and a Matter is Privileged if it’s not allowed to be disclosed by law.

The exclusion of privilege matters is predicated on the ground of public policy.

Thus, section 1 (b) of the Evidence Act 2011, which deals with the exclusionary rule of evidence provides inter alia that a fact may be relevant yet inadmissible if the proof of such fact is excluded by law.

Consequently, a witness may be competent and compellable, and still have the right to refuse to disclose or tender evidence.

Furthermore, if it’s another person’s privilege he cannot also be compelled to give evidence until the other person waives his privilege.

If it has to do with a document, it extends to secondary evidence of the document.

However, if the prosecution procure the document, it will be admissible.

This is evident in the case of Rumpling V D.P.P, where the letter the accused wrote to his wife confessing to have committed murder was intercepted by the prosecution and it was admissible.

Privilege may be raised at any time during trial.

Types of Privilege

1. State Privilege
2. Private Privilege

1. State Privilege

State Privilege are for persons who occupy public offices and it cannot easily be waived.

Types of State Privilege

1. Affairs of State
2. Judicial Officers
3. Information As to the Commission of Offence

1. Affairs of State

Section 190 of the Evidence Act 2011, prohibits the publication of any unpublished official records relating to the affairs of the state.

However, it may be published subject to the approval of either the President or Governor.

Furthermore, Section 191 of the Evidence Act 2011, prohibits public officers from disclosing official communication made to them.

However, it may be disclosed subject to court order.

In cases where objection is raised to the production of a document, the court is empowered to order for the production of the document in private to determine whether or not the objection is sustainable.

This is in accordance with Section 36 (4) (b) of Evidence Act 2011, which empowers the court to uphold or invalidate objection to disclosure of classified state document.

Thus, if the document is not harmful, it will be admitted in Evidence without hesitation in the interest of justice.

2. Judicial Officers

By Virtue of Section 188 of the Evidence Act 2011, no justice can be compelled to answer any question as to his own conduct in court or as to anything which came to his knowledge in court while sitting as a Judge.

However, Judges and Magistrate can give evidence of collateral incidents which occur in their presence while sitting as a Judge or Magistrate.

E.g., an attempt to rescue an accused or prisoner in court.

NB: The presiding officers of the Supreme Court and Court of Appeal are called Justices while those in other courts are called Judges. 

3. Information As to Commission of Offence

By virtue of Section 189 of the Evidence Act 2011, a Magistrate or Police Officer or any public officer authorized to investigate or prosecute offences under any written law cannot be compelled to reveal or disclose the source of the information as to the commission of an offence.

Thus, in R v Hennessey, the court held that the rationale as to non-disclosure is to protect the identities of the informant and to ensure the source of information does not dry up. 

2. Private Privilege

Types of Private Privileges

1. Professional Communications With Legal Practitioner
2. Privilege against self-Discrimination
3. Matrimonial Communication
4. Doctor and Patient, Priest and Penitent, Journalist and Informant
5. Privilege Attaching to Title Deeds and Other Document 

1. Professional Communications With Legal Practitioners

By virtue of Section 192 of the Evidence Act 2011, a legal practitioner is not permitted to disclose any communication made to him by his client or on behalf of his client.

He is not permitted to disclose such information even when such relationship with client has ended.

The rationale is that the privilege is that of the client and not of the Lawyer.

• A client can waived his privilege
• A mere friendly consultation is not privilege communication
• If the disclosure was done not in the capacity as a lawyer then it’s not privilege

E.g., sending document that should be protected to his opponent in the litigation.

However, there are exceptional circumstances under which privilege between a lawyer and his client is not protected, these include:

1. Where any communication is made in furtherance of any illegal purpose
2. Where the client has committed a crime or fraud
3. Privilege Against Self Discrimination

By virtue of Section 183 of the Evidence Act 2011, a witness has a right to refuse to answer any incriminating question.

It’s the duty of the Judge to direct the witness not to answer an incriminating question.

However, if the accused is represented by a counsel, it will be the duty of his counsel to call the attention of the court on behalf of the witness not to answer such question.

It’s also the duty of the trial court to determine whether or not a particular question will have the tendency of incriminating the witness.

Where such a witness is compelled to answer such a question, whatever he says will be treated as statement made involuntarily and it’s inadmissible.

3. Matrimonial Communication

By virtue of Section 187 of the Evidence Act 2011, communication between Husband and Wife made during the currency or subsistence of the marriage are privileged.

This privilege extends to Statutory, Customary and Islamic marriage.

Communication between such couple can only be disclosed with the consent of the spouse who made it.

However, if a third party gets hold of any privilege communication between spouses, it can be disclosed.

4. Doctor and Patient, Priest and Penitent, Journalist and Informant

Communication between a doctor and his patient, priest and penitent, and journalist and informant are not legally privileged although may be ethically privileged.

Privileges are conferred by and can only be enjoyed under the law.

Where a witness is under compulsion by the court, he must disclose such information.

Thus, in AG V Foster, two journalist were imprisoned for refusing to answer questions.

It must however be noted that, under state privilege, if a document is intercepted by a third party, let’s say the prosecution, such document is inadmissible but may be admissible in private privilege.

Priest and Penitent

By Virtue of Canon 983, a priest is prohibited from disclosing the confession of a penitent.

The confession must be kept secret and must not be reveal for any reason.

Canon 984 further forbids a priest from using any information obtained in confession to harm the person who confessed, even if there is no personal relationship involved.

Thus, in R v Hay, the accused was caught robbing someone on Christmas Eve.

The police found the stolen watch at a priest house and the priest was called as a witness Ad Testificandum.

The priest refused to testify and he was committed to prison for contempt of court. 

5. Privilege Attaching to Title Deeds and Other Document

By virtue of Section 184 of the Evidence Act 2011, a witness who is not a party to a suit cannot be compel to produce his title deeds to any property or document nor compel to produce a document that tend to incriminate him.

However, the privilege maybe waived in writing.

A person in possession of another person’s document cannot be compelled to produce it except by consent of the owner. 

Hearsay Evidence

Hearsay evidence refers to the evidence or statement of a witness in court which is a repetition of what some other person had told him.

This arises where a witness testimony repeats the statement (oral/written) made by another.

By virtue of Section 38 of the Evidence Act 2011, to establish any fact in court and as a general rule, hearsay evidence is inadmissible under the common law.

The rationale for the exclusion of hearsay evidence is predicated on the fact that it gives opportunity for fraud, misrepresentation and injustice.

If a statement is tendered to show that the statement was made, it’s admissible.

However, if it’s tendered to show proved the truth of the facts asserted it’s inadmissible.

Thus, in Ekpo V The State, the court made it clear that hearsay evidence is inadmissible.                   

Admissibility of Hearsay Evidence

The rule governing the admissibility of hearsay evidence was given judicial blessing in the case of Subramaniam V Public Prosecution.

In this case, it was held that it’s hearsay when it’s to establish the truth of the statement but not when it’s to establish that the statement was made.

Below are the instances where hearsay Evidence can be admissible according to Section 39 to 50 of the Evidence Act 2011:

• Statement by Deceased Persons (Those who cannot be found or incapable to testify)

The oral or written statement of a deceased person who cannot be found or incapable of testifying or whose attendance cannot be procured without unreasonable delay is admissible.

However, all these instances must first be prove at the trial before it’s admissible.

Below are the instance cases:

1. Dying Declaration
2. Statement Made in the course of Business
3. Statement Against Interest of Maker with Special Knowledge
4. Statement As to Public Right or Custom and Matter of General Interest
5. Statement Relating to Existence of Relationship
6. Declaration by Testator 

1. Dying Declaration

Section 40 of the Evidence Act 2011, provides for the admissibility of statement made by a deceased relating to the cause of their death.

Thus, in Akpan V The State, the statement of the deceased that “Sunday has killed me” was admissible as dying declaration.

The court in Okon V The State, highlighted some of the conditions required:

• The Statement must be of relevant facts.
• The Statement must relate to the cause of death and the cause of death must be issue in trial and
• The declarant must have believed himself to be in danger of death at the time of making the statement.

2. Statement Made in the Course of Business

Section 41 of the Evidence Act 2011, provides for the admissibility of a statement made by a person in the course of business.

Thus, in R V Lawani, an entry made by a police officer in an “Accident Report Books” before his death was admissible having made in the course of his duty.

3. Statement As to Public Right or Custom and Matter of General Interest

Section 43 of the Evidence Act 2011, provides for the admissibility of statement made by a person regarding an opinion as to the existence of any public right, custom or matter of general interest.

4. Statement Relating to Existence of Relationship

Section 44 of the Evidence Act 2011, provides for the admissibility of statement made in respect to the existence of a relationship by blood, marriage or adoption.

5. Declaration by Testator

Section 45 of the Evidence Act 2011, allows for the admissibility of declaration made by a deceased testator regarding his testamentary intentions and as to the content of his will. 

Character Evidence

Character is who you are while Reputation is who people think you are.

Generally, character evidence is inadmissible and the exclusion is predicated on its pre-judicial nature.

According to Section 77 of the Evidence Act 2011, character means reputation as distinguished from disposition.

Character Evidence is a person’s personality traits, moral standing in the society based on reputation or opinion.

Character Evidence in Civil Trial

By virtue of Section 78 of the Evidence Act 2011, Character Evidence as a general rule is inadmissible in civil trial.

However, there are exceptional situations in which character evidence is admissible in civil trial.

These include:

1. Calculations of Damages
2. Breach of Promise to Marry
3. Reckless Driving/Negligence
4. Defamation
5. Impeaching Credit in Cross Examination 

1. Calculations of Damages

In civil cases, the character of a person is taken into consideration in the award of damages.

The character of a person may serve as a mitigating factor in the amount of damages.

Thus, in Scott V Simpson, the court held that bad character of spouse can reduce damages in adultery and seduction.

2. Breach of Promise to Marry

The character of the parties are also taken into consideration.

For instance, if the man alleges that the woman was not faithful to him during the relationship and as a justification for such breach, character evidence will be admissible in such ground as illustrated in the case of Jones V Jones.

3. Defamation

By Virtue of Section 80 of the Evidence Act 2011, the character of the plaintiff is admissible in the justification or prove of the defamatory statement or to mitigate damages.

However, the defendant must notify the plaintiff at least 7 days before trail of intent to use character evidence and must obtain leave of the Judge to introduce such evidence.

4. Impeaching Credit in Cross Examination

Character Evidence is admissible where a party testifies in court, during cross examination, he may be asked a question with a view to impeaching his credit.

This include question as to his reputation, disposition and previous conviction.

Character Evidence in Criminal Trials

This is divided into:

• Evidence of Good Character and
• Evidence of Bad Character 

1. Evidence of Good Character

By virtue of Section 81 of the Evidence Act 2011, evidence of good character in criminal proceeding is admissible.

Such evidence may be given by the accused, his witness or extracted from the prosecution witness.

However, such evidence is rebuttable and for the evidence to have and probative value, it must relate to the offence charged.

Thus, in R V Tumer, the accused was charged for treason, and the court held that evidence of his good character should not be general but limited to character for Loyalty and being peaceful.

1. Evidence of Good Character

Generally, evidence of bad character is inadmissible in criminal proceedings except in the following circumstances:

• When the bad character of the accused is a fact in issue
• When the accused has given evidence of good character

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

Where the bad character of an accused person is a fact in issue, it’s admissible in evidence.

E.g., a case where previous conviction is an ingredient of the offence the accused is standing trial.

1. When the accused has given evidence of good character

Whenever the accused gives evidence of his good character, he has put his own character in issue and the prosecution is entitled to lead evidence in rebuttal.

Finally, wherever evidence of bad character is admissible, evidence of a previous conviction is also admissible.

Similar Facts Evidence

A similar facts refers to a fact similar generally to a fact in issue.

The general rule is that similar facts evidence is inadmissible.

The rationale for the inadmissibility and exclusion of similar facts evidence is predicated on the principle of relevancy which governs the admissibility of evidence and it’s to save the time of the court.

Thus, in Makin V Attorney General, New South Wales, the court listed some of the exceptional circumstances in which similar facts evidence is admissible.

These include:

1. Where the similar facts evidence is relevant to an issue before the court
2. Where the similar facts evidence is relevant for determining whether the acts constituting the offence charged was designed or accidental and
3. Where similar facts is relevant for rebutting any defence which could be otherwise open to the accused.

 Competency and Compellability

The mere fact that a witness is competent does not make the witness ipso facto compellable.

A witness maybe competent yet not compellable due to some legal restraints.

However, a compellable witness is a competent witness but not all competent witness are compellable.

The general rule is that a witness is competent if he may lawfully give evidence.

A witness is compellable if he may lawfully be required to give Evidence.

According to Section 209 of the Evidence Act, a child can stand as a sworn witness if he is age of seven but has not attained the age of 14 and on oath if he is above 14 provided he understand the duty of speaking the truth and in the opinion of the court if he possess sufficient information.

If the child pass the first stage sufficient intelligent to answer he can then give evidence.