Admissibility of Evidence in Nigerian Law

Admissibility of Evidence in Nigerian Law

CHAPTER ONE

OBJECTIVES OF THE STUDY

The objectives of this study are:

To bring the fore and to explain the procedure and practices of Nigerian courts in relation to the admissibility of child evidence.
b .To notify the masses of the importance and nature of competence and compellability as in relation to child.
To analyze the role and what should be the role of courts in ensuring that the evidence of a child is credible enough to be admitted and the conditions thereof.
To explain as lucidly as possible the application of the Act in relation to the admissibility of child evidence
To recommend possible solutions to the problems attached to the receiving of child evidence.

CHAPTER TWO

NATURE, SCOPE, MEANING AND CLASSIFICATION OF DOCUMENTARY EVIDENCE

Introduction

The main aim of this chapter is to examine various types of oral and documentary evidence, how they are classified as public and private documents, and to appraise the rules on admissibility of documentary evidence under Nigerian Evidence Act 2011. In order to achieve the main objectives, some preliminary or conceptual classification like documentary evidence and its classification would be made. Therefore this chapter is structured as follows: Nature, Scope, Meaning and Classification of Documentary Evidence.

Nature of Documentary Evidence

Courts as the machinery for the administration of justice between litigants have the ultimate duty of determining the legal rights and duties of parties before them. This task cannot be achieved without proper enquiry and investigation of the Courts about the facts and the relevant facts in dispute. Thus, the Courts must determine a particular case before them on the strength of the evidence presented to them by the litigants.¹

The term evidence is not actually defined in the Evidence Act 2011. It merely explained evidence.

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 are hereafter declared to be relevant, and of no others.

Provided that:

the Court may exclude evidence of facts which though relevant or deemed to be relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case, and

this section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the Law for the time being in force.²

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 investigating may be established or disproved. Evidence is therefore necessary to prove or disprove an issue of fact.

Evidence, include all means by which a fact in issue is established or disproved; thus, evidence may include documents and tangible objects.⁵

Evidence, is that which, in a Court of justice, makes clear, or ascertains the truth of the very fact or point in issue either on the one side or on the other. Any matter, lawfully deposed to on oath or affirmation, which contributes to the elucidation of any question at issue in a Court of justice.⁶

Evidence‟ is concerned with the means of proving or disproving a fact or facts⁷.Thus according to Phipson Sidney Lovell⁸, evidence “means the testimony, whether oral, documentary or real, which may be legally received in order to prove or disprove some facts in dispute”.

To Cross R.⁹, it is “the testimony, hearsay, documents, things and facts which a Court will accept as evidence of the facts in issue in a given case”. There is also the definition by Best¹⁰that evidence is “any matter of fact, the effect, tendency, or design of which is, to produce in the mind, a persuasion, affirmative or disaffirmative, of the existence of some other matter of facts”.¹¹ According to Stephen James Fitzjames¹², evidence involves the questions: what facts may or may not be proved, what sort of evidence must be given of a fact which may be proved and by whom and in what manner the evidence must be produced by which any fact is to be proved.¹³Each of the above definition of evidence is geared towards modes of presenting a persuasive story to establish an affirmative case in the Court.

CHAPTER THREE

PROOF OF DOCUMENTARY EVIDENCE

Introduction

The main objective of this study research is to examine the basis for proof of documentary evidence. Therefore this chapter is structured as follows: Proof of content of documentary evidence, foundation to be laid, admissibility and proper custody of the documents, proof of execution of documents and evidence of handwriting.

Documentary evidence has been accorded great value and importance as a means of proof under the Nigerian Law, it represents one of the best and most reliable legally admissible proofs in judicial proceedings¹.

The admissibility of documentary evidence is primarily dependent upon same being found to be relevant. Thus, relevancy is the first test of admissibility of documentary evidence. Thereafter, a party who wishes to rely on a document as a means of proof particularly in civil proceedings where pleadings are formally exchanged, must also satisfy the other conditions of admissibility of documents as might be required under various rules of Courts regarding pleadings. Further, even where a party has succeeded in satisfying the requirement of relevancy and pleading of documents, he must proceed for the Court to rely on his documents to prove to the Court the contents and due execution of such a document.²

Sometimes, a party to the proceedings in Court may find it necessary to rely on the contents of a document to the notice of the Court. In some cases, it is sufficient if the document or certified copy of it is tendered before the Court but in some cases, it may be necessary to prove that the document has been properly executed.³

The entire Law of Evidence, is dependent in the main, on the rules governing admissibility and inadmissibility of evidence and whether a piece of evidence is admissible or not is dependent upon whether the fact to be established by the evidence is relevant to the fact in issue, relevancy being judged by the provisions of the Act and not by any rules of logic. Although it is obvious that the rules of relevancy under the Act are generally speaking, based upon logical relevancy⁴.

Where a document is tendered in evidence, the party tendering it must also prove that it was duly executed. This means in essence that the person who appears on the face of the document to be its author was really the author, or in the case of public document that it is genuine and authentic. Except where due execution of a document is admitted or where it may be and is presumed, it is something that must always be proved before the Court can treat the document as valid.

CHAPTER FOUR

ADMISSIBILITY OF DOCUMENTARY EVIDENCE UNDER SECTIONS 83 AND 84 OF THE EVIDENCE ACT, 2011

Introduction

The main aim of this chapter is to examine the various conditions or procedures that must be complied with before a document made by the maker can be admissible in any proceeding under Sections 83 and 84 of the Evidence Act 2011; with the view to discuss the problems faced by persons seeking to tender documents under Sections 83 and 84 of the Evidence Act 2011.

Sections 83 and 84¹ are exceptions to hearsay evidence because where oral evidence can be given, the sections allow documentary evidence to be tendered by another person once the conditions prescribed in the Evidence Act are complied with.

Section 83 of the Evidence Act 2011 is a reproduction of Section 91 of the repealed Evidence Act 1990 which is also a reproduction of Section 1 of the English Evidence Act 1938. It makes certain statements contained in document admissible subject to specified conditions, some forms of the statement so admissible are hearsay. In fact the reason for its provision is to avoid certain difficulties created by a strict adherence to the hearsay rule.

Another effect of the provision is that it makes admissible in evidence a document which under the Common Law could only be used for refreshing memory by its maker while testifying. The Common Law does not allow a witness to state in his evidence-in- chief a former statement made by him which are consistent with his present testimony. Thus in an action where a worker’s case was that she sustained injuries while performing her duties under her employer and not at home, previous statement by her in support of her contention was rejected as evidence in the action. For instance, in the case of Jones v South Eastern and Chatham Rail Company’s Managing Committee² such previous statements were described as self-serving or self corroborating statements. The provision of Section 91³ (now section 83)⁴ applies to any proceeding and solely to statements in documents. It is applicable to arbitration. As the section does not provide any special definition of “statement” and “document” these two terms bear their general meanings under the Act.

CHAPTER FIVE

SUMMARY AND CONCLUSION

This Dissertation analyses the evidential rules on admissibility of documentary evidence under the Nigerian Law. The Dissertation considered issues under statement of problems, aim and objective, justification of the study and provided for a literature review. Contributions of many Authors both within and outside Nigeria were reviewed.

Summary

There are problems in the rules of evidence which were observed under the documentary evidence. There are difficulties in explaining some provisions by the Theories, Courts, Lawyers, Students of Law and because the provisions of the Evidence Act is not liberally interpreted some Lawyers lose cases because they are not versatile in the provisions of the Evidence Act since everything a Lawyer need to do in the Law Court, hinges on Law of Evidence. This is because evidence is the cornerstone of litigation and cuts across all facts relating to Legal practice whether criminal or civil and in every case a Lawyer must lay proper and adequate foundation before presenting his evidence in Court.

For a fair justice system, evidence is indispensable. Majority of the scholars however, called for legislative reforms for proper drafting and interpretation of the Evidence Act 2011. This Dissertation also analyses key terms for instance “evidence”, “documentary evidence” and “relevancy” of evidence. Evidence, though not defined by the Evidence Act 2011, it provided uniform definition among scholars. Evidence is the legally admitted fact and legal means of proving such fact in judicial proceedings, is by oral evidence, documentary evidence, real evidence, electronic evidence and other kinds of evidence admitted under the Evidence Act 2011.

Section 258 of the Evidence Act 2011 made an improvement by closing the lacuna seen in the Evidence Act 1990. It defined what is documentary evidence to include computer, disc, tape, sound track or other device in which sounds or other data are embodied so as to be capable of being reproduced from information stored or which may be retrievable. This definition is adequate to deal with the challenges of electronic evidence as brought by the modern information technology storage device. Electronic recording evidence includes computer, internet, telex machines, video and audio tapes etcetera. Section 84 Evidence Act by providing for the admissibility of statements in documents produced by computers in any proceeding of which direct oral evidence would be admissible.

Other improvements brought by this Evidence Act are seen in S. 40 which provided for statement relating to the cause of death of a person which is admissible in whatever may be the nature of the proceeding which is applicable in both civil and criminal proceedings. But the repealed Act section 33(1)(a) 1990 restricted its application to only trials for murder and manslaughter. Section 83 of the Evidence Act also provided for its application in any proceeding: both in civil and criminal proceedings. But the repealed Act S. 91(1) 1990 is relevant only in civil proceedings.

The concept of admissibility and relevancy of evidence has been analyzed and it is established to be interrelated because for any evidence to be admissible, it must be relevant and supported by the Evidence Act which shows that admissibility is a matter of Law and fact.

Findings

In the final analysis of this Dissertation, the following findings have been made as follows:

Separation of sections that provided for the circumstances in which secondary evidence can be admissible and the modes of proof as seen in sections 89 and section 90 Evidence Act, creates some interpretation problems especially to the Students of Law.
Another finding is in respect of electronic signature which the Evidence Act 2011 did not provide for the nature of electronic signature
Another finding is with regards to Evidence Act 2011 which altered some number of sections in the old Evidence Act, 1990. Instead of leaving the sections and still effect the intended amendment (rather than making an alteration and making things difficult for the people). This was not done. The alterations so made pose a lot of difficulties to Lawyers, Courts and Students of Law

Recommendations

It is therefore recommended that in view of the shortcomings highlighted in this study, Evidential Rules on Admissibility of Documentary Evidence Under the Evidence Act 2011. There is need for legislative reforms to redress the issues for proper drafting, interpretation and understanding. For instance, the issues in respect of amendments of the use of simple English to replace the word „provided‟ for easy understanding.

The Evidence Act also needs legislative amendment in respect to sections 89 and 90 of the Evidence Act 2011. In essence, the separation of Sections 89 and 90 of the Evidence Act 2011 should be redrafted together under one section and each foundation to be laid should be supported with mode of secondary evidence admissible for simplicity, understanding and interpretation. The Evidence Act 2011 should be amended to provide for the nature of electronic signature for its admissibility purposes.

The Evidence Act 2011, notwithstanding its improvement in respect to some terms used, for easy interpretation of words like provided, unless, except, as seen in Sections 128(1), 91, 83(1) and (4), etcetera of the Evidence Act 2011, needs to be amended. All these terms meaning the same, can be replaced with conditions or foundations to be laid for the admissibility of any evidence in any proceeding, for easy understanding and interpretation by the Lawyers, Scholars, Courts and Students of Law.

Documentary evidence has a great advantage because once a document or any memorandum is written, signed, dated it is admissible in evidence and document speaks for itself which needs no oral, alteration, contradiction or variation except where fraud, mistake, illegality, wrong date, etcetera is seen.

Conclusion

In conclusion, the researcher recommends legislative reforms/amendments to Sections 83, 89 and 90 of the Evidence Act 2011 to redress the problems of lack of understanding, misunderstanding, misinterpretation and misapplication by Lawyers, the Courts, and Students of Law, caused by the separation of Sections 89 and 90 of the Evidence Act 2011; the use of the words “provided” and “unless” in Section 83 of the Evidence Act 2011; and non provision of the definition of the nature of electronic signature under Section 83(4) of the Evidence Act 2011.

REFERENCES

Aguda, T.A.: (1974) The Law of Evidence in Nigeria (Sweet and Maxwell, London.) (2^nd Ed.)
Aguda, T.A.: (1998) Law and Practice Relating to Evidence in Nigeria. (MIJ Professional Publishers Ltd. Lagos, Nigeria.) (2^nd Ed.)
Aguda, T.A.: (1999) The Law of Evidence. (Spectrum Books Limited Ibadan, Nigeria.) (4^th Edition).
Aguda, T.A.: (1989) The Law of Evidence (3^rd Ed.) (Spectrum Law Publishing Ibadan, Nigeria.)
Ashi, VS B.: (2008) Documentary Evidence, Selected Issues, Conflicts and Responses (Chenglo Limited, Enugu, Nigeria.) (2^nd Ed.)
Babalola, A.: (2001) Law and Practice of Evidence in Nigeria (Sibon Books Limited Ibadan<, Nigeria.)
Best (1922) Principles of Law of Evidence, pp 2, 22-23. Quoted in Nwadialo F.: (1981). Modern Nigerian Law of Evidence. (Ethiope Publishing Corporation, Ring Road, Benin City, Nigeria.)

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