MEANING AND SOURCES OF NIGERIAN LAW OF EVIDENCE

By WALE ADEAGBO TOYIB. Director of Litigation, JUSTICE CHAMBERS, FACULTY OF LAW, OAU, ILE-IFE.

Despite the existence and relevancy of the Evidence Act 2011 as an instrument regulating the whole mantra of evidence in Nigeria, the word evidence still strives for a statutory definitions. The academia and the judiciary have however helped out in this regard. Thus, to have a handful grasp of what evidence means, recourse shall be made to case laws and textual authorities.

According to PHIPSON, evidence means ‘the testimony whether oral, documentary or real which may be legally received in order to prove or disapprove some facts in dispute’. In his own attempt, C.D. FIELD scholarly defined judicial evidence thus (in the following words):
Evidence received by court in proof or disproof of facts, the existence of which comes a question before them …..Known as judicial evidence.

In fact, AGUDA also adopts the tag of judicial evidence in his text on the Nigerian Law of evidence, He comments that judicial evidence is the totality of how facts are established in a court of law excluding arguments and inferences. CROSS stated that evidence consists basically of testimonies, documents as he quipped thus:

The testimony, hearsay, documents, things and facts which a court will accept as evidence of facts in issue in a case.

According to COCKLE in Cockle on Evidence, the term evidence as used in law, which is also called judicial Evidence has the same means as is commonly used, to wit: the means by which facts are made evident or established to the satisfaction of persons enquiring into them, granted that such facts are credible and sufficient to satisfy or convince prudent minds.

The Court of Appeal in ONYA-v- OGBUJI (2011) ALL FWLR (Pt556) 493 per Salauwa, J.C.A defined evidence in an encompassing manner and self-comprehensive one.

The term evidence has been aptly described as any specific of proof, or probative matter legally presented at the medium of witnesses, records, documents, exhibits, concrete objects, etc. for the purpose of inducing belief in the mind of the court or jury as to their contentions.
This definition has enjoyed adoption by Nigerian courts in various cases, and so was of judicially amplified in KOLO-v-LAWAN (2011) ALL FWLR (Pt597) 725 CA also in AWUSE -V- ODILI (2005) 16 NWLR (Pt952) 416 at 496 CA.

In essence, Evidence can be said to be the means by which facts in issue are established by a judicial tribunal. Such evidence could be oral testimony of a person who actually perceived the facts, through any one of the documents to prove facts which are in issue, or real evidence which is the production of material objects other than documents.

The importance of evidence in deciding the success or otherwise of a party’s case cannot be over emphasized. Virtually, all a party needs to do in order to achieve success in a court of law hangs upon the Law of Evidence. It is of course a reality that judges who hear matters are not superhuman, neither could they penetrate human minds in passing their judgements. Rather as a matter of procedure, they merely bound to act on facts as presented to them or as are adduced by the disputants. This has been given credence in ONIOMOH -v- UNIJOS (2006) ALL FWLR (Pt304) 552 CA that:

Evidence whether oral or documentary consists of facts, and facts are the fountainhead of the Law. It is facts that determine the fate of any proceedings…By law, cases are invariably decided…on their peculiar facts and circumstances, see UGWU V ARARUME.

According to the learned authors of C.D. FIELD’S LAW OF EVIDENCE, the function of the law of evidence is to narrow down the matter which have a logical, probative value. They conclude that because the law of evidence prevents judgements based on prejudice or illogical conclusions, it is indeed an aid to the administration of justice.

Because of the umbilical relationship that Nigerian had with the British colonialists, hardly will there be any law in Nigeria that its distance source will not hang on the Received English law comprising the common law, doctrines of equity, and the statutes of General Application in force in England as at 1st January, 1900. This was the case on the law of evidence as applied in Nigerian courts before 1945 at which the Evidence Ordinance No 27, 1943 came into force.

This ordinance enjoyed series of amendments from 1950, 1955 (twice). In 1958, it was re-enacted as the Evidence Act. This Act was in force till1990 when it statutorily baptized as Evidence act Cap112 LFN 1990. The provisions of the 1990 act further slightly amended were reproduced verbatim to form the Evidence Act 2004, which was on the 3rd Day of June, 2011 repealed and was replaced by the Evidence act 2011 Cap. E14, LFN.

By the provisions of S.2 & 3, the Evidence Act has been put at an arena of superiority on evidence-related issues in the light of any other enactment on litigation procedure. The Evidence act though acknowledges the existence of any other act, or any other legislation validly in force in Nigeria as part of the laws in which resort can be made to, however, they are of lower rank to the Evidence act.

It should be noted that no matter how superior an enactment can be in Nigeria, and in any other democratically-oriented nations, it will still be subject to the provisions of the Constitution which in our jurisprudence called the grand norm. By S. 23 of PART I of SECOND SCHEDULE, the CFRN 1999 makes evidence a matter within the exclusive legislative competence of the National assembly. Further affirming the constitution as a source of law of Evidence in Nigeria are the provisions in S. 36 (1) and (4), (5), (6) d & e CFRN 1999.

In an unprecedented manner, the Evidence Act 2011 has added another source to the Nigerian evidence law. By S.255, it is now permissible for the Minister of Justice and Attorney-General of the Federation to make regulations generally prescribing further conditions, though with respect to admissibility of evidence that may be relevant under the act.

In summary, the sources of the Nigerian law of evidence are:

•The Evidence Act 2011;
•Other local legislations, Statutes or Rules of court;
•Judicial opinions of justices of courts of record in Nigeria;
•Opinions of courts of foreign jurisdiction (persuasive effect);
•The received English law where applicable;
•The constitution of the Federal Republic of Nigeria, 1999 and
•Regulations, practice or reference directions made by the Attorney General of the Federation.