Evidence Law: A Common Ground Between Civil And Criminal Litigation (Part 1) | Wale Adeagbo AICMC

by Legalnaija | Nov 28, 2024 | Blawg

INTRODUCTION

Under the adversarial system of trial which Nigeria practices, the Court itself cannot undertake a search for relevant evidence, but must reach its decision solely on the basis of such evidence as is presented by the parties.[1]

In the Nigerian legal atmosphere, one of the radars that has been constant is the finding of facts before a Court, which stipulates that it is the responsibility of each party to adduce evidence that proves its claims, and/or to disprove the claim of either party.

From the above, it is not in doubt that parties to a case, therefore, sink or float by the pieces of evidence they place before the Court, in establishing their claims and disproving the claims of the adversary.

WHAT IS EVIDENCE?

The term “evidence” lacks a statutory definition. In FEDERAL REPUBLIC OF NIGERIA v. MIKE,[2] the Court remarked that, like other concepts in law, there can be no universally accepted definition of evidence. However, the judiciary through cases has provided some definitions for the term. In ONYA & Ors v. OGBUJI & Ors,[3] the Court defined evidence in the following words:

“The term evidence has been aptly described as any specie of proof, or probative matter legally presented at the trial of any issue, by the parties and through 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.”

Also, in LAWAL v UNION BANK OF NIGERIA PLC,[4] the Supreme Court, while explaining the meaning of evidence held that:

“Evidence, as used in judicial proceedings has several meanings. In one sense, it means the testimony, whether oral, documentary or real which may legally be received in order to prove or disprove some fact in dispute. Evidence in a judicial proceeding does not consist of oral evidence alone and proof of a fact can be documentary.”

In simple terms, evidence is central to the case of any party, as it forms the fulcrum upon which the success of the case of a party rest.

THE LEGAL FRAMEWORK FOR THE LAW OF EVIDENCE

The major Legal framework for the law of Evidence in Nigeria is as stated below:

• The Constitution of the Federal Republic of Nigeria, 1999 (as amended);
• The Evidence Act, 2011;
• Decisions of the Nigerian courts of record;
• Decisions of courts of a foreign jurisdiction;
• The Rules of Courts, and Practice Directions;[5]
• Regulations, practice or reference directions made by the Attorney-General of the Federation.[6]

THE GOLDEN PRE-TRIAL RULES

Asides from the fact that evidence is undoubtedly the centerpiece of a party’s case, and it is basically during the trial or hearing of such case that the evidence is to be admitted or rejected by the Court, it is equally important to take note of basic preliminary matters while preparing for a case. These preliminary matters are to decide which party to sue, where the action is to be instituted, and which originating process to employ in order to institute the case. All these among others are referred to as the golden pre-trial rules.[7]

It is from this golden rule that a party decides the appropriate originating process with which to initiate his matter. This determines to a very large extent the type of evidence that will be utilized by such party depending on whether the matter is criminal or civil in nature.

For criminal matters, while it is either initiated by way of information or by charge, there are however four broad-based ways of commencing civil actions. These include: Writ of summons, Originating Summons, Originating Motion and Petition.[8] The mode adopted in each case depends hugely on the nature of the claim/case and the applicable rules and/or statutes.[9]

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FRONTLOADING

This is a term used to denote the trend in civil procedure, where each of the parties is required to bring forward his case beforehand, at the point of filing. In SYLVESTER v. OHIAKWU,[10] the Court of Appeal stated that frontloading meant the upfront filing of all documents to be issued at the trial, so as to ensure that only serious and committed litigants with prima facie good cases and witnesses to back up their claims, would find their way into Court and thereby reducing lame duck claims. It involves stating the names of witnesses and the depositions of those witnesses, filing copies of the documents the party will rely on, and other relevant facts that will be relied on during the trial.

The rationale behind this is not hard to appreciate, as its object is to attain justice, by giving each party the opportunity to know beforehand, the case he is going to meet, and to afford him the opportunity to prepare his defence. This is to prevent a party from shooting a surprise shot at the other party.

It should be noted that the Rules of the various High Court have provided for this. For example, Rule 15 of the HIGH COURT RULES. The rule provides that the originating process must be accompanied by the list of witnesses, list of documents to be relied upon during trial, written statements on oath of the witnesses, and so on.

AFFIDAVIT EVIDENCE

Where the choice of the appropriate originating process has been made, and a party decides to institute the matter by way of Originating Summons, it is apposite to note that the way to establish the claim of such party will be by Affidavit Evidence.

Affidavit Evidence is that type of evidence wherein a person will depose to facts, either within his knowledge or not, and same shall be sworn to in the Court before an authorized person.[11] While adopting the definition in Bouvier Law Dictionary, Compact Edition, the Court of appeal in the case of SENIOR STAFF ASSOCIATION OF U.T.H.R.I & A. I v OLOTU,[12] stated as follows:

“An affidavit is a statement reduced to writing, in which factual assertions are made under oath or affirmation…before a Notary or any other officer who administers the oath and authenticates the affiant’s signature on the document.”

S.T. Hon., SAN has described an affidavit as a written or typed and printed declaration or solemn statement of facts, made either on oath or affirmation[13] before an authorized person, which facts are either derivable from the personal knowledge of the deponent or person making the declaration; or are derived from external sources, provided those sources and the reasons under which belief in those sources is founded upon, are named in the affidavit.[14]

For an affidavit to be properly cladded with the armour of evidence and same be accepted by the Court, there are statutory conditions it must have met. It has to meet the mandatory provisions of the Evidence Act as to form or contents thereof.

1. An affidavit must be sworn or affirmed before a designated or authorized person; because if it is not so sworn or affirmed, it shall not be admitted in evidence.[15] These designated or authorized persons are mostly Commissioner for Oaths. Relying on the case of ONUJABE v. IDRIS,[16] the person before whom such oath is taken must indicate his name and not just the official stamp.

Note Better: Affidavits sworn to before a party’s legal practitioner is void, notwithstanding that the said legal practitioner is a notary public and he administered the oath in that capacity.

4. An affidavit must be signed by the deponent. This may be in the nature of affixing a signature or thumbprint. An unsigned affidavit is no affidavit at all.[17]
5. The concluding part of the deposition must be clear as to the fact that it is an oath or an affirmation. Note that the words “I make this Affidavit in good faith and in accordance with the Oaths Act” are commonly used, after which the date of commissioning thereof is inserted.
6. For the contents of an affidavit to be accepted as evidence, such contents must strictly comply with the provisions of Section 115 of the Evidence Act.[18]

Note Better: The rules above are also applicable to Counter-Affidavits.

It should also be noted that it is in practice that documents be attached to affidavits. Courts have pronounced in a long line of cases that documents attached to an affidavit form part of the evidence. Copies of documents attached to an affidavit need not be admissible in law, it will be nonetheless admissible. See the cases of ILORIN EAST LOCAL GOVT. v. ALASINRIN & Anor,[19] AONDOAKA v OBOT.[20]

ORAL EVIDENCE

Oral evidence or testimony is the totality of the evidence a witness enters into a witness box and gives, after being sworn or affirmed. Pursuant to the provision of Section 176 of the Evidence Act, 2011, Oral evidence also include sign, semiotics, brail or body language demonstrated by an incapacitated person while in the witness box testifying.

Oral evidence is given through Examination-in-chief, cross-examination and re-examination. It must be noted that generally for oral evidence to be admissible as evidence by the Court, it must be direct[21] and not hearsay.

It is statutorily stipulated that all facts, except the content of documents, may be proved by oral evidence.[22] Thus, a party who wishes to establish facts before the Court has to do so by way of oral evidence, dependent of course where the originating process requires so.

As stated earlier, Oral evidence is given through Examination-in-chief, cross-examination and re-examination_ this is the order of production and examination of witnesses as stipulated under Section 215 (1) of the Evidence Act, 2011. Witnesses shall be first examined-in-chief, then, if any other party so desires, cross-examined, then, if the party calling him so desires, re-examined.

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Examination-in-chief

The examination of a witness by a party who calls him is called Examination-in-chief. In AYORINDE v SOGUNRO,[23] it’s stated that evidence-in-chief is an opportunity for the plaintiff and his witnesses to state their case on oath.

In civil matters, practice no longer requires that witnesses render their testimony orally, the examination-in-chief of a witness is now done by the adoption of their written statements on oath already filed before the Court. However, in criminal matters, there is nothing like adoption of any statement, witnesses have to render their testimony.

It should be noted that leading questions are generally not allowed during the examination-in-chief.[24] “Leading questions are questions suggesting the answers which the person putting it wishes or expects to receive”.[25]

Under examination-in-chief, a witness may be allowed to refresh his memory by referring to any writing made by him, or any such writing made by any other person and read by him, within the time of the situation/transaction in which he is testifying on. This is provided for under Section 239 of the Evidence Act, 2011.

Cross-Examination

This is the second broad step in the examination of a witness. It is an examination of a witness by a party other than the party who calls that witness.[26] In effect, after a witness is examined-in-chief by the party calling him, he is then cross-examined and questioned by the opponent. The questions in both examination-in-chief and cross-examination must relate to relevant facts, but cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.[27] Leading questions are permissible under cross-examination and a witness can be cross-examined as to matters in writing.[28]

The general scope and extent of cross-examination of a witness is provided under Section 223 of the Evidence Act as follows:

“When a witness is cross-examined, he may, in addition to the questions herein before referred to, be asked any questions which tend to-

1. Test his accuracy, veracity or credibility; or
2. Discover who he is and what is his position in life; or
3. To shake his credit, by injuring his character.

Provided that a person charged with a criminal offence and being a witness may be cross-examined to the effect, and under the circumstances, described in paragraph (d) of the proviso to section 180 of this Act.”

Cross-examination is also allowed in an instance where more than one defendant is being charged. In that instance, each defendant will have the right to cross-examine the other and such cross-examination shall take place before that of the prosecution.[29] Where a witness has been summoned to produce a document and he is then sworn as a witness;[30] where a witness steps into the witness box to testify as to character;[31] cross-examination of a complainant in a rape or attempted rape charge about the victim’s previous sexual experience;[32] and denial of further right of cross-examination of a witness, who is in the witness box to declare another witness as unworthy of credit.[33]

 Re-Examination

Under Section 215 (1) and (3) of the Evidence Act, the right of a party to re-examine his witness is guaranteed. Re-examination, is described by the Learned Justice Rhodes-Vivour (Rtd) in the case of AYORINDE v. SOGUNRO[34], as an opportunity for the witness to restore credibility to his testimony. This is in addition to the common purport that re-examination is to resolve ambiguity during cross-examination. The right to re-examination is sacrosanct, thus, its outright refusal by the Court amounts to failure of justice.[35]

Subpoena Duces Tecum and Ad Testificandum

In a proceeding, be it criminal or civil, there is a high propensity that witnesses may be summoned to either tender documents alone, or to testify and tender documents. In either case, the process of summoning such a witness is known as a subpoena. Evidence of a party can be elicited via this means as well. Subpoena duces tecum is for when the witness is to produce document(s) in his possession while subpoena ad testificandum means summons to a person for him to appear in Court and testify as a witness. The third kind has been described by the Court in the case DICKSON v SYLVA[36] as the combination of the duo above, wherein the witness will be called to both tender a document and testify.

References

[1] Adrian Keane & Paul McKeown, The Modern Law of Evidence, 9^th edition, Oxford University Press, 2012.

[2] (2014) 1 SC (Pt. I) 27 @ 55

[3] (2009) LPELR-8508(CA)

[4] (1995) 2 SCNJ 132 at 146-147

[5] For example, the National Industrial Court of Nigeria Practice Direction, 2022; Provisions under Order 34, High Court of the FCT (Civil Procedure) Rules, 2018; Provisions under Order 20, Federal High Court (Civil Procedure) Rules, 2019.

[6] By Section 255 of the Evidence Act, 2011, the A.G. Federation has been empowered to make regulations generally prescribing further conditions with respect to admissibility of any class of evidence that may be relevant under the Evidence Act.

[7] Other golden pre-trial rules (preliminary matters) are locus standi, limitation of action, parties, and other issues revolving round jurisdiction.

[8] Note Better: That civil proceedings shall be made reference throughout and the reason is that the proceedings regarding evidence is all-encompassing.

[9] Vatsa v FBN Plc (2012) 2 NWLR (Pt. 1283) 1 CA

[10] (2014) 5 NWLR (Pt. 1401) 467 CA

[11] Inegbedion v. Selo-Ojemen (2004) All FWLR (Pt. 221) 1445 at 1460

[12] (2016) 14 NWLR (Pt. 1531) 1 @ 5 CA.

[13] Section 120(1) of Evidence Act, 2011.

[14] Sebastine Tar Hon(SAN), S.T. Hon’s Law of Evidence in Nigeria, 3^rd Edition (Pearl Publication, 2019) pages 908-909.

[15] Section 112 of the Evidence Act, 2011.

[16] (2012) 2 NWLR (Pt. 1284) 285 CA

[17] See Section 117(4) of the Evidence Act, 2011.

[18] Every affidavit must contain only a statement of facts; it must not contain extraneous matter by way of objection or prayer, legal argument or conclusion; when facts/information are derived from other persons, the circumstances forming the ground of his belief must be set out and the name of his informant shall be stated, the time, place and circumstance of the information.

[19] (2012) LPELR-8400 (CA). The court pronounced that: “I have held that a document attached to or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the court to be used, once the court is satisfied that it is credible. Being already an evidence before the court (on oath), the formality of certification for admissibility (if it required certification) had been dispensed with…the reason for this is easy to deduce, the first being that affidavit evidence is already admitted evidence before the court unlike pleading, which must be converted to evidence at the trial, at which time issues of admissibility of an exhibit is decided. The second point is that and exhibited copy of a document attached to affidavit evidence must necessarily be a photocopy or secondary copy…”

[20] (2022) 5 NWLR (Pt. 1824) SC 523.

[21] Section 126, Evidence Act, 2011.

[22] Section 125, Evidence Act, 2011.

[23] (2012) 11 NWLR (Pt. 1312) 460 at 478 SC.

[24] Section 221(2), Evidence Act, 2011.

[25] Ibid. Section 221(1)

[26] Ibid. Section 214(2)

[27] Ibid. Section 215(2)

[28] Ibid. Section 222

[29] Ibid. Sections 216 and 217.

[30] Ibid. Sections 219.

[31] Ibid. Sections 220

[32] Ibid. Sections 234

[33] Ibid. Sections 235

[34] (2012) 11 NWLR (Pt. 1312) 460 at 478 SC.

[35] I.G.P v Nwabueze (1963) 2 All NLR 119.

[36] (2017) 8 NWLR (Pt. 1567) 167 at 192.