The Evidence Act, 2011; Has the Mission Been Accomplished?
Helen Uchenna Agu *
Abstract
In July 2011, the Evidence Act, 2011, was passed by the Nigerian National Assembly to replace the old Act which had been stuck in a time warp since 1945. This is a welcome development but has the mission of producing a robust legal framework that will support modern day transactions been accomplished? This paper seeks to answer this question by highlighting the challenges posed by the repealed Act and in line with the recommendations of the Law Reform Commission, examine how far these were incorporated into the new Act. It concludes with a comment on the prospects or otherwise of the present legal regime.
1. Introduction
The law of evidence is, undoubtedly, and without any exaggeration, one of the most important laws in the Nigerian legal system. This is so because the rules of evidence play a prominent role in the conduct and determination of cases in court. It determines which facts are legally admissible in court and prescribes the legal means of establishing these facts. Generally, when a litigant goes to court to ventilate his grievances, the court, by the rules of substantive and procedural laws, has to conduct an enquiry into the facts of the case, draw inference from those facts and in addition, listen to the legal arguments of the parties or their counsel. In doing this, a thorough understanding of the law of evidence becomes not only relevant but absolutely important[1]. The success or otherwise of any litigation is determined the mastery and application of necessary rules of evidence.
Modern rules of evidence dates back to the Middle Ages with decisions of common law judges. Those decisions gave birth to the complex body of rules known today as the Law of Evidence.
Law of Evidence as developed from the English Common Law and applicable in most common law jurisdictions has undergone several reforms in recent times especially in the area of technological development. However, the law of Evidence in Nigeria has not kept up with its other relatives in other common law jurisdictions. The law of Evidence in Nigeria, until now, did not witness any significant amendment since it came into force in 1945. This scenario opened it up to several criticisms.[2]
There is no gainsaying the fact that the revolution in information technology has permeated every sphere of life. Perhaps, the most revolutionary implication of contemporary technological developments is the evolution of a paperless environment characterized by three principal trends: dematerialization of the work place, omnipresence and malleability. The effect of this is that it has become practically impossible to give or adduce evidence of modern day transactions in today’s world without recourse to computer-generated evidence. In this very critical area the law of evidence in use in Nigeria which is the 1958 Evidence Ordinance No. 62[3] is terribly deficient.
As far back as 1996, Pats-Acholonu JCA (as he then was)[4] derided the archaic and anachronistic outlook of most of the provisions of the old Act. He entertained the hope that a thorough overhaul of the Act was desirable, if not imperative. He stated:
… our Evidence Act is … completely out of tune with realities of the present scientific and technological achievements. Most of its sections are archaic and anachronistic….
It is therefore, merely stating the obvious that in this era of global technological revolution, there is need to put in place in Nigeria, a robust legal framework that can support modern day commercial transactions and create an investor friendly economy. The answer finally came with the passage into law of the long awaited new Evidence Act, 2011. This repeals the Evidence Act, 1945.[5]
At last, Nigeria can now boast of a modern Evidence Act after several years of inertia. This is a welcome development but can one safely assume that the mission has been accomplished? Has the new Act cured all the deficiencies which the repealed Act was accused of? In this paper, we shall attempt to answer the questions by reviewing the historical antecedents and challenges posed by the repealed Act. Against this background, we shall highlight some fundamental additions to the new Acts as well as the amendments to the existing provisions. Finally, we shall examine the prospects or otherwise of the new legal regime for better advocacy in Nigerian courts.
2. The Evidence Act 1945; Historical Antecedents and Challenges
As earlier noted, the Evidence Act was passed into law in 1943, though it became operational in 1945. This Act, which is essentially based on the Stephen’s Digest of the Law of Evidence, has not witnessed any significant amendment since it came into force in 1945. The simple implication of the foregoing is that the Evidence Act has remained, essentially, the same legislation that was passed by the colonial authorities, two centuries ago[6].
The Act was severally criticized not just because of its old age but principally because it was predicated on the traditional norms and natural expectations of a people governed by English law whose system is not completely in tandem with Nigeria. As observed by the law Reform commission; our investigations disclosed three ways in which evidence in the courts as dictated by the Act, may be considered to be out of step with either our culture or our present day circumstances. First, the current practice does not appear to take adequate cognizance of our indigenous ideas regarding the achievement of true justice. Secondly, there appears to be some degree of maladjustment in the balance between substantial and technical justice in our court trials. Thirdly, the Act fails to grant adequate recognition to some of our cultural institutions.[7]
As observed by Nweze,[8] those common law rules underwent several mutations in England long after their legislative cognates had been transplanted to the Nigerian soil. In effect, while English law modified the relevant common law rules to suit the changing times and circumstances in England, nothing was done to purge the Nigerian Evidence Act of those provisions which owed their origin to obsolete common law rules. Thus, for close to sixty years, Nigerian law continued to espouse what English law had discarded as being counterproductive, for example, the primary evidence rule.[9] So being a pre-colonial regulation, the Act naturally did not take cognizance of recent advances in the field of technology. Its use of obsolete language is often times deficient in clarity. These criticisms were well founded as the observed deficiencies were weighty enough to agitate many legal minds to demand reform.
What is more, some other provisions of the old Evidence Act were based on English Statutes. For instance, while section 160 (d) was based on section 1 of the Criminal Evidence Act, 1898 of England; section 183 derived from section 38 of the Children and Young Persons Act of England. On its part, while section 91 was based on the English Evidence Act, 1938, section 5 (a) was a fac simile reproduction of section 6 (2) of the English Evidence Act, 1938.[10]
Perhaps nothing could, better, advertise the anachronistic implication of that approach than section 220 of Evidence Act which was a near statutory codification of the 1942 House of Lord’s decision in Duncan v Cammel laird.[11] That decision was handed down just a year before the promulgation of the old Nigeria Evidence Act in 1943, although it did not come into operation until June, 1945. Now, Duncan’s case, served as a precedent in England for only twenty-six years. The Law Lords overruled it in Conway v Rimmer[12] in 1968. The effect was that the reasoning in Duncan’s case was buried in 1968 in England. Unfortunately, however, the ghost of that decision continued to clang its grating chains in section 220 of the old Act and is still clanging its grating chains in section 243 of the 2011 Evidence Act.[13]
Some of the challenges posed by the old Act are summarized as follows:
- Inadmissibility of computer generated evidence. The Supreme Court as far back as 1968 counseled that the courts should not close their eyes to the mysteries of the computers[14]. No concrete legislative steps were taken to acquaint the courts with the dynamics of not only the computer but also of other kinds of electronic evidence. The result was that the courts adopted conflicting approaches to the admissibility of electronically-generated evidence.[15]
- Limited definition of marriage in relation to competence and compellability of witnesses.
- Concept of presumption as to telegraphic messages.
- Inadmissibility of audio-visual evidence.
- Exclusion of the applicability of the Act to certain courts.
- The limited definition of documentary evidence.
- Limited scope on the definition of primary and secondary evidence.
- Inadmissibility of statements in documents marked “without prejudice’’.
- Inadmissibility of the evidence of a person of unsound mind.
- Absence of an express legislative prescription on the mode of reception of, and the weight to be attached to, illegally obtained evidence, hence courts often fall back on some judicial options for guidance.
- Limited scope in the definition of confession and admission. An important area that clamoured for attention was the procedure for obtaining the confessions of accused person. Notwithstanding all the ingenious devices which the courts devised, most suspects always had awful stories to tell[16].
- Obsolete and archaic evidence terminologies inapplicable to contemporary best evidential jurisprudence, for instance, the use of such term as ‘accused’ which has been described as being pejorative.
- Advent of information technology has rendered the provisions of the old act obsolete, archaic and inoperative[17].
- Haphazard arrangement of sections. This appears to be one of the worrisome aspect of the old Act. They, considerably, exacted the interpretative skills of the courts. Almost always, they had to strive to conflate mutually related provisions to be able to arrive at reasonable renditions of most of the provisions.
The above highlighted deficiencies set the machinery of reform in motion which eventually led to this new Act.
3. Fundamental additions to the New Act
In the words of Quakers:[18]
Any country which seeks to develop and meet up with Millennium. Development Goals must provide an enabling environment for those who might be interested in investing in its economy. This enabling environment must not only include security and infrastructure but also a robust legal framework to support commerce.
This is in line with global best practices and the new Act has materially taken into consideration almost all the criticisms against the old Act as articulated by the Law Reform Commission in 1998. A summary of these innovative provisions shall be highlighted while emphasizing those issues that have, before now, generated so much controversy within academic and judicial circles.
These innovations include:
- By Section 256, the Evidence Act is to apply to all courts in Nigeria except Customary courts, Sharia courts and other courts considered inferior courts of record. It clarified the courts which are bound to apply the Act and those that will be merely guided[19]
- Section 2 emphasizes that all relevant evidence is admissible unless excluded under any legislation. This, in conjunction with amendments to affected provisions, is designed to rectify the blurring of the distinction between relevancy and admissibility in the Act.
- Section 3 restricts the admissibility of evidence in Nigerian courts to only evidence made admissible under Nigerian legislation. The new section replaces section 5 of the repealed Act, which has been blamed as the avenue for continued recourse to English common law of evidence by our courts.
- The Act now provides for the general admissibility of evidence obtained from illegal search or seizure, and for inadmissibility of evidence obtained in breach of constitution provisions. [20] The Act amplifies the special circumstances which will guide the court in exercise of its discretion in such matters.
- Sections 28 and 29 of the Act embodies the provisions with respect to voluntariness of confession. Section 27 defines the term ‘confession’ while section 29 deals with the protocols for the admissibility of confessions. It defines ‘oppression’ to include torture, inhuman or degrading treatment, and the use of threat or violence whether or not amounting to torture.[21] This tougher protocol is in recognition of the global concern for human rights violations especially by law enforcement agencies.[22] The Chief Justice of Nigeria is also empowered to make rules regulating the practice and procedure for the admissibility of confessions in criminal trials[23]
- Unlike in the former Act, the term “hearsay evidence” has been formerly introduced into our evidence legislation in Section 37. The expression has also been clearly defined, stating the general rule, and expressly stating the categories of absent persons whose statements can be received in evidence.[24] There is also a new section providing for the reception of oral hearsay evidence in respect of private rights declared relevant under the Act.[25]
- Another important innovation is the general improvement in the language of the Act. Section 46(2) provides that a criminal trial or inquiry shall be deemed to be a proceeding between the Prosecutor and the Defendant within the meaning of this section.[26] The term ‘accused’ has now been replaced by a less pejorative term ‘defendant’. This is in tune within the presumption of innocence guaranteed under the constitution.[27]
- Sections 131-140 provides for standard of proof on the balance of probabilities in civil cases, and also in cases where a burden of proof is placed upon an accused person by law.
- By section 124 a court is now enjoined to take judicial notice of matters of common knowledge in the locality in which a proceeding is being held.
- The Act by section 116 now embodies the principle established by the supreme court[28] that where hitherto an Affidavit was irreconcilably in conflict on crucial facts, the court shall for the purpose of resolving the conflict arising from the affidavit evidence, ask the parties to proffer oral evidence as to such facts.
- Section 166 provides for the presumption of marriage where it has been proved to the satisfaction of a court that a couple has co-habited as husband and wife.
- Section 196 provides for the inadmissibility of statements contained in documents marked “without prejudice”. It gives no room for the proof of intention of the parties.
- Section 206 mandates a prescribed cautionary statement to be read and explained to a witness in English and translated in a language he is comfortable with before the administration of oath and affirmation.
- There is now an expanded definition of the terms “husband” and “wife” which has the effect of abolishing the discrimination between the different forms of marriage in the country[29]. The repealed Act only recognized monogamous marriage in the line with the English culture.
- Under the new Act, evidence of children has now been specified thereby bringing to an end the controversy regarding the status of the evidence of children. Now all children under 14 years may give unsworn evidence in court while those who have attained the age of 14 years are to give sworn evidence.[30]
- There is a new provision granting to the court power to examine a document in respect of which official or state privilege is claimed.[31] The court now has the discretion to determine whether or not to hear the evidence in camera in so far as the constitutional right to fair hearing is preserved [32]
- In recognition of the need to protect women rights, a limitation has now been placed on the type of questions to be asked or evidence to be adduced by the defendant in trials of sexual offences.[33]
The most important innovations introduce by the 2011 Act are in the areas of electronically generated evidence, definition of documents and bankers’ books which has been expanded to include E-resources. In view of the several comments generated by these issues in judicial and academic fora, these shall be examined in detail.
3.1 Electronically Generated Evidence
This aspect of the law of Evidence has been a subject of intense controversy for a long time.[34] There are decisions in our case law in support of admissibility and inadmissibility of computer and other electronically generated evidence. This controversy reached a peak in case of FRN v Fani-Kayode[35] where the Federal High Court rejected a certified true copy of the computer generated statement of account of the Respondent. The Court of Appeal later overruled the decision of the trial High Court. What the Evidence Act 2011 has now done is to remove the lingering doubt over the admissibility of computer-generated evidence.[36] 84(1) Section provides categorically as follows:
In any proceedings, 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 shown that the conditions in subsection(2) of this section are satisfied in relation to the statement and the computer in question.
(2) The conditions referred to in subsection (1) of this section are-
a. 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, by any individual;
b. 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;
c. 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
d. that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
The purpose of section 84(1) is simply that in any proceedings, where direct oral evidence would be admissible, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it on the satisfaction of the conditions stipulated in subsection (2) of section 84.
The next question will then be – what is computer generated evidence? By section 258 of the Act, “a computer” means any device for storing and processing information and any reference to information being derived from it by calculation, comparison or any other process.”
Also the definition of ‘Document’ has now been expanded to include “any device by means of which information is recorded, stored or retrievable including computer output”[37] This means that electronic and computer generated evidence is a generic description for certain classes of evidence processed, stored or derived from computer or computer based devices or electronic communication system.[38] A major characteristic of this class of documents is that unless printed, they are in paperless form and though contained in tangible objects, are visible but intangible.[39]
Under the forgoing definition, Computer Evidence would also include banker’s books of various types e-mails, telephone records, text messages, digital cameras outputs, mobile phones, video record, letters or other documents processed in a computer or electronic device or stored in a computer based storage device.[40]
3.2 Banker’s Books
Evidence of banker’s record are fundamentally essential and retain the key to unraveling many financial crimes especially money laundering, bribery, and corruption cases. Section 258 of the Act defines “banker’s books to include ledgers, day books, cash books, account books and all other books used in banking business whether kept in the written form or as printouts of data stored electronically.” This definition is consistent with the day-to-day business transactions of banks. This is because all banks in Nigeria operate a computerized system in all their business transaction. This means that banker’s books as previously known have changed from the ledgers, day books, cash books, account books and all other books used in the ordinary business of a bank to a computerized system whereby all these information are stored, processed and transmitted electronically.[41]
In Anyaebosi v R.T.Briscoe (Nig) Ltd[42], the Supreme Court in considering the above situation held that such books have now replaced entries expected to be found in bound banker’s books.[43]
Section 34(1) (b) of the Evidence Act deals with the weight to be attached to admissible statements produced by computer.
The foregoing are only a few of the novel provisions of the Evidence Act 2011 intended to cure some of the inadequacies of the old Act, which did not make express provisions to guide the courts on the admissibility of electronic evidence. These innovations will be of considerable assistance to the courts particularly in the adjudication of advance fee fraud and money laundering cases. This is in line with modern developments in the law of evidence as courts are now expressly authorized by the Act to admit in evidence computer print-outs, electronic mails, facsimile, and other electronic documents. However, while the above provisions represent a significant upgrade, they certainly would not address all the problems relating to electronic evidence. As the courts begin to apply these provisions, other challenges would emerge to compel further improvements in the law.
4. Notable Amendments to the Existing Provisions
Among the most notable of the amendments to the existing provisions of the Act are;
- The inclusion of the hitherto excluded aspect of the common law principle in Makin’s Case[44] that similar facts evidence is also used to rebut any defence that may otherwise be open to the defendant.[45]
- Expansion of the definition of “admission” in Section 20 to cover admission by conduct.
- Extension of admissibility of dying declarations to all civil and criminal proceedings, unlike the former practice of restricting same to trials for murder or manslaughter only.[46]
- Extension of conditions for admissibility of hearsay evidence against interest of maker to include exposure to criminal and civil liability in addition to that statement being against the pecuniary or proprietary interest of the maker.[47]
- Abolition of the rule in Hollington v Hewthorn[48] by making a fact of conviction admissible evidence in a subsequent civil trial[49].
- Amendment of the provisions on documentary evidence to take account of documents produced through electronic processes.[50]
- Abolition of the requirement for corroboration in respect of sexual offences by non-retention of the relevant provisions.[51]
- The Act now contains a general expression extending the protection of judicial and official communications to all officers statutorily charged with the investigation and prosecution of offenders.[52]
- Clarification of the extent of power of a judge to put questions to witnesses.[53]
- Clarification of certain provisions of the Act through implementation of Supreme Court decisions; and the provision of new definitions.[54]
5. Prospects of the Evidence Act, 2011
The foregoing posits a few of the numerous novel provisions as well as the amendments to the Evidence Act, 2011. The intention of the law makers and the numerous stakeholders in the justice sector is to enthrone a new legal regime that will ensure quicker and smooth dispensation of justice. As observed by Quakers:
Any country which seeks to develop and meet up with Millennium. Development Goals must provide an enabling environment for those who might be interested in investing in its economy. This enabling environment must not only include security and infrastructure but also a robust legal framework to support commerce”.[55]
This apparently has been achieved by the enactment of the new Act. Most of the observed deficiencies have been taken care of the novel provisions and amendments especially with the admissibility of computer generated or electronic evidence. These innovations will be of considerable assistance to the courts particularly in the adjudication of advance fee fraud and money laundering cases. This is in line with modern developments in the law of evidence as courts are now expressly authorized by the Act to admit in evidence computer print-outs, electronic mails, facsimile, and other electronic documents.[56] Put simply, it has created some windows through which the courts could view and confront the mysteries of the computer and other electronically generated evidence. The provisions are, indeed, tailored towards the advancement of modern business methods. Even modern advances in IT which are not expressly mentioned could, on a proactive reading of some of the provisions, be brought to bear on the trial process.[57]
However, it is my humble submission that there is yet much room for improvement. Constraints of space and time will not permit me to identify potential areas of conflict raised by the various provisions of the new Act. We shall highlight but a few; With all due respect, the complete exclusion of the recourse to common law rules may present difficulties in the administration of justice especially in the cases where the law or any legislation as that did not expressly provide a guide. As it is known that no law can be so comprehensive as to provide for all exigencies that may arise, it would have been safer to leave room for referring to new developments under English Law where the Act or any legislation did not expressly leave a guide.
It is also noteworthy to point out that section 3 of the old Act has been regrettably omitted. The section provides that:
One fact is said to be relevant to another when one is connected with the other in any of the ways referred to in the provisions of this Act relating to relevancy of facts.
In the absence of the definition of the term ‘relevancy’ and the other term ‘admissibility’ almost always, employed analogously as if both were synonymous[58], the old section 3 afforded a rare insight into the factual linkages of relevant facts because of their connections with each other in any of the ways referred to in the Act.
The question of whether section 17 of the old Act was a codification of common law rules on ‘similar facts evidence’ had hitherto provoked divergent responses.[59] Section 12 of the 2011 Act appears to have remedied this anomalous situation having aggregated all the exceptions in Makin’s case. Under this new section, where 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. On this Nweze noted the infelicitous insertion of the last exception. He suggested that to make the section more elegant, that exception may be prefaced with a subordinate clause, thus, [where it becomes necessary]. With this suggested addition, the section should now read thus: “when there is a question whether an act was accidental or intentional or done with a particular knowledge or intention or where it becomes necessary 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.”[60]
The new Act prescribes only two modes of proving a custom and they are either by judicial notice or by its proof as a fact.[61] With regard to proof by judicial notice, all the previous disputations about the frequency of the application of a rule of customary law by superior courts have now, become, largely, otiose or, at best, academic.[62] By section 17, “a custom may be judicially noticed when it has been adjudicated upon once by a superior court of record’[63]’. It is only when the court decline to take judicial notice of a custom that its proponent would be required to prove it as a fact.[64] In doing so, he may call in aid the opinions of expert, that is, “the opinion of persons who would be likely to know of its existence in accordance with section 73.”[65] There is a half-hearted attempt to attenuate the repugnance of the “repugnancy doctrine” in section 18 (3).[66] However, instead of, entirely, bowdlerizing that doctrine which rankled patriotic anthropological jurisprudents, the section only did a cosmetic change by quibbling with semantics![67]
The new Act has now strengthened the hands of the court in the conduct of a trial within trial for the purpose of determining the voluntariness of a confession.[68] There is the novel inclusion of the term ‘oppression’ in the determination of relevancy of a confession and also now, the court can suo motu require the prosecution to prove that the manner of its obtainment of a ‘confession’ was not in contravention of the conditions in the Act. Despite these innovations, the new legal regime still falls far short of the Miranda Principles.[69]
The new Act still retains the ancient distinction between proof of the content of a document either be “primary or by secondary evidence.” According to section 86 (1) “Primary evidence means the document itself produced for the inspection of the court”. This approach is rather ungainly and as noted by Nweze, this statutory requirement traced its pedigree to the common law rules relating to proof of the contents of documents. These rules were confirmed and first applied in the middle of the 19th century. More so, the historical imperative that impelled the evolution of the “primary evidence” rule were dictated by the expediency of obviating the drudgery of transliteration, with its attendant errors and possible forgeries. Listen to an insightful account of its evolution:
The rule has a very long history, dating back to the days when all copying of documents had to be done by hand, and the scope for mistakes and forgeries was considerable. The rule was thus underpinned by the rational that the original document was the best evidence obtainable and was not subject to the risks of inaccuracy associated with manual copying, or with a witness giving oral evidence of the content of a document from memory.
The point must be made here that the advent of technology succeeded in supplanting the logic of that historical exigency. The draftsman of the new Act did not seem to factor this exigency into the above distinction.[70]
All presumptions are now to be found in one part- sections 145-168. One reservation against the Supreme Court decision in Ogbunyinya v Okudo[71] is that it did not factor section 7 of the National Archives Act into its reasoning on the presumption in favor of newspapers. Section 148, unfortunately, re-enacted the exact provision of the old section 116. In effect, we are likely to witness further divergences of judicial opinions on the admissibility of newspapers in evidence. By section 196 of the new Act, documents marked “without Prejudice” are now absolutely privileged without regard to the parties’ intention. This is desirable so as to protect negotiations made in the course of dispute settlement. However, it is important to note the observation of the Court of Appeal in UBA Ltd v IAS & Co. Ltd[72] that although a letter may not be marked as being privileged, it may nonetheless have that character if from the circumstances of the case it is evident that the negotiations were in fact made without prejudice. Conversely, merely heading a document “without prejudice” will not automatically carry along with it any privilege unless the document relates to negotiations towards the settlement of the issue or part thereof which has arisen between the parties.[73] What the now requires is that once a document is so marked, it shall not be given in evidence, the intention of the parties notwithstanding. This will definitely be abused especially in this digital age we are in where a lot of manipulations could be done in a document electronically.
Apart from the foregoing, many other areas of confusion of clarity still remain which shall be pointed in further discourse and as the Act is applied in practice. It is also noteworthy the many typographical errors in the Act, for instance, in many provisions of the Act it still retained the term ‘Bill’ instead of ‘Act’. Although this may be excused because of the urgency of passing the Act but there’s need for an urgent revision.
6. Conclusion
The Evidence Act has come a long way. The old Act has been on ground for close to six decades thereby deserving a long service award. The present democratic regime deserves a commendation for this bold step in legal development. However, the mission may seem accomplished but there is still much room for improvement.
As the Act passes through the mill of enforcement, many other issues will yet emerge to compel further improvement and reforms. Reforms are a product of the dynamism of the operations of rules and regulations. For now, it is not yet safe to declare fait accompli. The fact that we live in a changing world in which new technological development and challenges emerge, many other issues will continue to arise. However, the success or otherwise of this new law will depend on the attitudinal disposition of the various stakeholders in the chain of administration of justice in terms of deployment and usage of the innovations in the new Act.[74] It is hoped that it will not take so long to make further amendments to this very important area of law. However, there is now an important provision in the new Act which empowers the minister of justice to make regulations for the admissibility of any class of evidence that may in future, be declared relevant[75]. This provision will help to alleviate any hardship that may be occasioned by delayed amendment to any of the provisions of the law.
* B.Sc (Nig), LL.B (Nig), BL, Lecturer, Faculty of Law, University of Nigeria, Enugu Campus. e-mail- helen.agu@unn.edu.ng, helen_aguesq @yahoo.com.
[1]. J.A Dada, The Law of Evidence in Nigeria, (Calabar: Unical Press, 2004), p.1.
[2]. See, N.I.Quakers, “The A-Z of the new Evidence Act…the Difference is Clear” ThisDay Lawyer, THISDAY Magazine, July 26, 2011, p. Ix.
[3] Sustained by the Evidence Act, CAP 112, LFN 1990, ibid.
[4] In Araka v Egbue (1996) 2 NWLR (Pt. 433) 688.
[5] Cap E14, LFN, 2004, now repealed by section 257, Evidence Act, 2011.
[6] Dada, above note 1 at p.17.
[7] Dada, above note 1at p.18.
[8] C. C. Nweze; “Evidence as the Lifeblood of Litigation: Understanding the New Evidence Act” paper presented at the SPIDEL Session of the NBA Enugu Law Summit, November 29, 2011 held at Citi-Park Hotel, Independence Layout, Enugu. p. 2.
[9] Ibid., p.3.
[10]. Ibid.
[11]. (1942) AC 624.
[12]. (1968) All ER 878.
[13]. C. C. Nweze however, observed that it is doubtful whether section 243 still possesses the potency of Duncan’s case having regard to the impregnable provision of section 36 of the 1999 constitution (as amended). Aguda J. [as he then was], in Hameed Apampa & Anor v Yesufu Balogun, (Unreported) Ibadan, Suit No 1/227/65 of 20/10/1970 in Law Notes and Review (a publication of the Nigerian Institute for Continuing Legal Education) 13, declared section 219 (now section 243) unconstitutional in so far as it abrogated the power of the court to balance the conflicting public interests of the national security and the due administration of justice on the basis of section 22 (1) of the 1963 constitution(now, section 36 of the 1999 constitution). According to his Lordship, a litigant could not be said to have had a fair hearing if part of the evidence he required to his case was shut out and he was prevented from leading it. See also, Odesanya J. in Maja v U.A.C Nig. Ltd (1971) NMLR 157.
[14] Esso West Africa Inc v Oyagbola (1969) I NMLR 194, 198; also, Yesufu v ACB Ltd (1976) 4 SC 1, 16.
[15] While some suggested that judicial notice of these devices sufficed, eg. Onalaja JCA in v IMB (1995) 9 NWLR (Pt. 419) 324; others suggested amendments to incorporate these developments, see, per Acholonu JCA in Egbue v Araka (supra). Some other courts even foreclosed the possibility of making use of computers in courts without formal legislative enactment, see, for example, Onnoghen JCA (as he then was) in Nuba Comm Farms Ltd and Anor v NAL Merchant Bank Ltd (2001) 16 NWLR (Pt. 340) 510, 523 and Coomassie JCA (as he then was) in UBA Plc S. A. F. P. U. (2004) 3 NWLR (Pt. 861) 516, 543.. Only a few were audacious enough to permit the admissibility of these devices, for example, Adamu and Salami JJCA (as they then were) in Trade Bank v Chami (2003) 42 WRN 129; F. R. N. v Fani-Kayode (2010) 14 NWLR (Pt. 1214) 481- 696 see generally C. C. Nweze., note 8 at pp 4-5.
[16]. Ibid., p. 5
[17]. Quakers, above note 2 at p. ix.
[18]. Ibid.
[19] Evidence Act, 2011, section 256 (2) & (3), , Area courts are to be guided but they are bound to observe the provisions on burden of proofs.
[20] Evidence Act, 2011 ,sections 14 &15.
[21]. Ibid., section 29(5).
[22]. See M,A.Owoade, “Voluntariness of Confessions in Nigerian Law – Need for Reform,” (1990)111 CAL L.J 50 cited in Dada above, note 1 at p.8.
[23]. Evidence Act, 2011, section 255.
[24]. Evidence Act, 2011, section 39.
[25]. Ibid., section 46.
[26]. Emphasis mine.
[27]. 1999 Constitution, section 36(5).
[28] Falobi v Falobi (1976) 7-10 SC.
[29] Evidence Act, 2011, section 258.
[30] Ibid., section 209.
[31] Ibid., sections 190, 191 and 243.
[32] 1999 Constitution, section 36 (4).
[33]. Evidence Act, 2011, section 234.
[34]. Y. Akinseye-George, The A-Z of the new Evidence Act…Why the Old Act Had to Go” ThisDay Lawyer, ThisDay Magazine, July 26, 2011, p.viii.
[35]. (2010) 14 NWLR (Pt. 1214) 483-696.
[36]. Akinseye-George above, note 34 at p viii.
[37] Evidence Act 2011, section 258(d).
[38] Akinseye-George above, note 34, p.x.
[39] Justice J.O.K. Oyewole, ‘Challenges in Applying Documentary Evidence in Fraud Cases’ in Bolatito Ajibade, (Ed.) Law, Democratic Government & Justice Administration in Nigeria; (Life Gate Publishers, 2009) p. 569 cited in Y. Akinseye-George above, note 34.
[40] Ibid.
[41] Oyewole above,note 39 at pp569.
[42] (1987)3 NWLR (Pt.59) 84.
[43] Oyewole above,note 39 at pp573-574.
[44]. Makin v AG New South Wales (1994) AC 57 at 65.
[45]. Evidence Act 2011, section 12.
[46]. Ibid, section 40(2).
[47]. Ibid., section 42.
[48]. (1943) 1KB, 587.
[49]. Evidence Act 2011, section 63.
[50]. Ibid., sections 84 &52.
[51]. Section 179(5) of the Evidence Act 1945 was not retained in the 2011 Act.
[52]. Evidence Act 2011, section 189.
[53]. Evidence Act 2011, section 246.
[54]. Ibid., see generally sections 84,190,191,243 and 258.
[55]. Quakers, above note 2 at p. ix.
[56] Akinseye-George, above note 34 at p.x.
[57] Nweze above., note 8 at p. 20.
[58] See Lord Simon in DPP v Kilbourne(1973) AC 729; also per Olatawura in ACB Ltd v Gwagwada (1994) 4 SCNJ (Pt. 11)268, 277 cited in Nweze, ibid
[59] See, for example, T. A. Aguda, Law of Evidence 4th ed.,(Ibadan, Spectrum Law Publishing,1999); F. Nwadialo, Modern Nigeria Law of Evidence (Benin City: Ethiope Publishing Corp., 1981); F. Joshua, “Admissibility of the Common Law Exceptions to Similar Facts Evidence uer the Nigeria Evidence Act’’, in The Nigeria Journal of Public Law, Vol. 1, 1997, 243, 245; D. Ijalaye, “The Rules of Evidence and Criminal Justice Administration in Nigeria,” cited in F. Joshua, ibid; D. Adekunle, “The Place of Exclusionary Rules in Nigeria Law of Evidence’’, in (1991) JUS Vol. 2 No. 4, 45 at 50; Y. Osinbajo, “The Common Law, Evidence Act and Interpretation of Section 5 (a)’’ in J. A. Omotola (ed), Essay in Honor of Judge Elias 165 all cited in Nweze, above, note 8 at p. 9.
[60]. Ibid p. 10.
[61]. Evidence Act, 2011, section 16.
[62]. Nweze, above note 8 at p. 11.
[63] Rabiu v Abasi (1996) 7 SCNJ 53.
[64]. Evidence Act, 2011, section 18.
[65]. Ibid., Section 18 (2).
[66]. The section provides that ‘in any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy or is not in accordance with natural justice, equity and good conscience.
[67]. Nweze, above note 8 at p. 12.
[68]. Evidence Act., section 29 (2) & (3).
[69] Miranda v Arizona 386 US 436 (1966), re-affirmed in Dickerson v US 530 US 428(2000). The Miranda Principle announced a new rule governing the admissibility of statements made during custodial interrogation. According to the court, before initiating any such interrogation the police should inform the suspect: “That he has the right to remain silent; that anything he says can be used against him in a court of law; that he has the right to the to the presence of an attorney; and that if the he cannot afford an attorney will be appointed for him prior to any questioning if he so desires’ See, at page 479. Indeed, the new Administration of Justice Law of Anambra State has a more pro-active outlook than the provision of the new Evidence Act. However, it may well be that the draftsman did not want to be drawn into the controversy which Miranda has generated, see, M. N. Berman, “Constitutional Decisions” in Virginia Law Review Vol. 90, March 2004, No 1, 1. all cited in Nweze, above note 8, p. 9.
[70]. Nweze, above note 8 at p. 19.
[71]. (1979) 3 LRN 318.
[72]. (2001) FWLR (Pt. 75) 578.
[73]. UBA Ltd v IAS & Co. Ltd, above note 72 at 590.
[74] Quakers, above note 2 at p. X.
[75] Evidence Act, 2011, section 255.