Critical Appraisal on Opinion Evidence
CHAPTER ONE
FOCUS OF STUDY
The focus of this essay is to critically look into the admissibility and validity of opinion Evidence by the court of law. Also what forms of Evidence may be admitted as opinion Evidence and also what grounds they can be admitted and cases as they are applicable as provided by the Evidence act.
CHAPTER TWO
INTRODUCTION OF OPINION EVIDENCE
INTRODUCTION
The opinion of a witness is as a general rule, irrelevant and ‘ipso facto’ in admissible in evidence. Opinion here refers to ideas, a belief or judgment based mainly on feelings. Opinion exists in the thinking, imagination and understanding of the author, it is therefore essentially judgmental. To explain this further, I have to define opinion.
WHAT IS OPINION
Opinion simply refers to ideas, a belief or judgment based mainly on feeling, it exists in the thinking, imagination and understanding, of the marker and therefore it is essentially judgmental.
An opinion is different from a fact with which it is often confused. Whereas a fact refers to a state of thing as they are or as they actually happened, opinion refers to how the giver of the opinion think, beliefs or infers in regard to the facts in dispute, as distinguished from his personal knowledge of the facts themselves, thus, an opinion exists.
Also, a central feature of the English rule of Evidence, which constitutes the foundation of the Nigerian law of evidence, is that in litigation before the court, witnesses must restrict their testimony to the fact as observed by them. Consequently, witnesses are expected to give direct evidence of their own perception. They ought not to form opinion or beliefs from such facts. The general rule on opinion evidence is that it is not admissible. This is well expressed in section 66 of the Evidence Act, which state that:
“The fact that any person is of the opinion that a fact in issue, or relevant to the issue does not exist is irrelevant to the existence of such fact except as provided in section 57 to 65 of the Act”.
In accordance with this general rule, an eyewitness to a motor accident must only state what he saw, and not whose fault he thinks the accident was, or whether the driver in his opinion is negligent as it was held in R V Turner. Also, a witness may not give an opinion that certain action is calculated to deceive as it was held in North Cheshire Brewery V Manchester Brewery. Furthermore, in RV Robert, a case of murder in which the defence sought to establish the defence of provocation, expert evidence was not allowed to state the opinion that in the light of the accused personally, he has the intent to commit murder.
ADMISSIBILITY IF OPINION EVIDENCE
The utilitarian value of opinion evidence cannot be doubted. In most of the instances where opinion evidence is relevant and ipsofacto admissible, better evidence is usually either difficult or impossible to obtain23. Important and almost indispensable as opinion evidence may be, it needs be noted that care must be taken in the ascription of probative value to opinion evidence.
Undoubtedly, cold facts are by far better, and more reliable than opinion evidence because no matter the degree of honesty and impartiality and trustworthiness of a person, his opinion may be tainted by his own prejudice idiosyncrasies and most often the interests of the party who calls him. This fact has long been recognized.
Commenting specifically on the unreliability of expert opinion evidence, even in England, it has been observed as follows:
“It is often quite surprising to see with what facility, and to what an extent their views can be made to correspond with the wishes or the interests of the parties who call them. They do not indeed, willfully misrepresent what they think, but their judgments become so warped by regarding the subject in one point of view, that even when conscientiously disposal, they are incapable of forming an independent opinion. Being zealous partisans, their belief become synonymous with faith as defined by the Apostle and it too often id but “the substance of things hoped for, the evidence of things not seen”.
It is for the above reason that it is respectfully opined that opinion evidence, generally, whether of expert or lay witnesses, must be carefully scrutinized before any reasonable weight is attached to it, otherwise, it should be taken with a pinch of salt.
CHAPTER THREE
OPINION OF EXPERTS WITNESS
INTRODUCTION
Generally, expert’s opinion evidence is admissible in relation to matters deemed to be outside the competence and experience of the tribunal of fact; as such it would assist the tribunal in the process of drawing appropriate inference. An expert opinion may be admissible to furnish the court with scientific information, which is like to be outside the experience or the knowledge of the judge or jury. For it is given dressed up in scientific jargons, it may make judgment more difficult. The experts may be experts in foreign law, customary law, science or art, handwriting or finger impressions.
In other words, where the matter calls for special skill or knowledge which a judge or jury does not posses. In such a case expert witness will not allowed to express an opinion. For example, in RV Manson,50 the defence to a charge or murder was that the victim had committed suicide and the issue was whether the doctor could be asked whether the injuries could have been self-inflicted. The Court of Appeal held the answer admissible, in criminal proceedings, even experts are not permitted to give their opinion on the ultimate issue or on issues that are within the competence of the ongtinary juror.
CHAPTER FOUR
OPINION OF NON-EXPERTS WITNESS
INTRODUCTION
In discussing non-expert opinion, a question may be asked as to what extent a nonexpert can give opinion evidence. Generally speaking, the courts have been taken a pragmatic in recognizing that in certain situations, evidence as to facts and opinion will be inextricably linked.
In certain cases, expedience and the demands of justice may necessitate the admission of opinion of non-expert as evidence in court. Explaining the common law on this subject, Cross has observed that there is nothing in the closed list of cases in what non-expert opinion evidence is admissible85. Typical instances would include question concerning speed, age, weather, handwriting and identity in general. Thus at common law, non-expert are allowed to speak on the result of their observation in circumstances where these facts are too complicated to be narrated distinctly.
CHAPTER FIVE
GENERAL CONCLUSION
RECOMMENDATION
The following recommendations have been made in view of the above discussion on relevancy and admissibility of opinion evidence in Nigeria.
- The governments of our country should try and create multiple mediums as possible in other to educate and enlighten the whole public, on the need to give accurate and sincere statements and opinions whenever they are called upon or when the need arises for them to testify in/before the court.
- The judges and jury should be diligent in accepting opinion of third persons so as to avoid the incessant occurrence of injustice.
- The counsels should bother themselves with the proof of ingredients necessary to sustain the admissibility of opinion evidence.
CONCLUSION
It’s apparently clear that one needs to understand the issue of opinion evidence and the rules guiding its relevancy and admissibility well enough to be able to know what situation expert or non-experts opinion will be relevant and admissible when this is done, a well deserved end will be brought to the general feeling that expert witnesses are always made to sing whatever tune as may be dictated to them by those who call them to bear testimony. Should this be done, all elements of bias or prejudice of the general public concerning opinion evidence will be reduced to the bearest minimum.
BIBLIOGRAPHY
BOOKS
- HENRY CAMPBELL LAW DICTIONARY (6th Ed.) 199 west publishing Co.
- Aguda T.A.: The Law of Evidence Spectrum(4th Ed. Spectrum Books Ltd, Ibadan 1999)
- Afe Babalola, Law and Practise of Evidence in Nigeria, 1st Edition, 2001.
- Cross, On Evidence5th Edition (London Butterworth, 1979).
- Cross, On Evidence6th Edition (London Butterworth).
- Heydon, Evidence Cases and Materials(3rd Edition Butterworth, 1991).
- Keane, The Modern Law of Evidence(4th Ed.) 1996.
- Sweet and Maxwell Law of Evidence, 1997.
- P.O. Dowd, South African Law of Evidence (Cape Town, Juta and Co., United, 1963).
- R, Bagshaw, Cross & Wilkins Outline of the Law of Evidence, 7th Ed. (London Butterworth, 1996).
- Halsbury, Law of England, 3rd Edition, vols.
- Murphy P.A., Practical Approach to Evidence(4th ed. Black Stone Press Ltd, 1992).
