The Nigerian Evidence Act 2011

The repealed Evidence Act was enacted by the colonial administration in 1943 and came into force in 1945. The Act witnessed minor amendments in 1948, 1958 and 1991 but remained substantially the same till its repeal in 2011. The provisions of the Act were based primarily on the book, “Digest of the Law of Evidence” by Sir James Fitzjames Stephen. The Evidence Act 2011 (also referred to as the Act) came into force on 3 June 2011 when it received the assent of the President of the Federal Republic of Nigeria (as it contains no commencement date). The Evidence Act 2011 is remarkable in that it is a significant attempt to address the multitude of inadequacies in the old law. In terms of arrangement of its provisions and admissibility of the old English law, the Evidence Act 2011 differs from the old law in that the provisions on interpretation and extent of application of the Act have now been moved to the end of the law, some even repealed particularly Sections 3, 255, 256 and 258 as against the beginning in the old law. A number of common law principles on evidence (such as on hearsay, and improperly obtained evidence) which were not directly provided for in the old law are now subject of express provisions. The following is an outline of some of the changes wrought by the Evidence Act of 2011.
The proviso to Section 6 of the old law which precluded a person for giving evidence which he is disentitled to prove by the provisions of any law has been expanded. In this respect, the provision of Section 2 reads thus:
“For the avoidance of doubt, all evidence given in accordance with Section 1 shall unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which this Act applies…” Section 3 reads thus: “Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria.”
A new provision is Section 14 which allows for the admissibility of improperly obtained evidence, (as recognized under the Common law in cases such as Musa Sadau v. State). It is however noteworthy that the provision allows the Court a discretion in admitting such a piece of evidence, and the court is required to satisfy itself that ‘the desirability of admitting the evidence is outweighed by the undesirability of admitting evidence that has been obtained in a manner in which the evidence was obtained.’ Section 15 of the Act prescribes the factors which the court will consider in exercising its discretion as to admissibility under Section 14.
Section 3 of the new Evidence Act specifically provides only for evidence that is admissible under other legislation in force in Nigeria. Meanwhile, the repealed Evidence Act provided in Section 5 (a) for ‘the admissibility of any evidence which is not specifically provided for in the Act but which is admissible by some other rules.’ This provision has been applied time and again to admit evidence which is admissible under other statutes and the common law in situations where the Evidence Act is silent on the admissibility of such evidence. A good illustration of the import of the provision in section 5(a) is provided by the case of R. v. Itule (1961) ALL NLR 462. The Supreme Court in considering whether a confession statement which is in favour of an accused person is admissible in support of the accused’s case, Brett Ag C.J.F stated:
“The matter is not dealt with expressly in Sections 27 to 32 of the Evidence Ordinance and the common law rule therefore applies by virtue of Section 5(a).” See also the case of Onyeanwusi v. Okpupara (1953) 14 WACA 21 at 311.
Professor Taiwo Osipitan commenting on the provisions of section 5 (a) of the repealed Evidence Act noted as follows:
“The Evidence Act does not pretend to be an exhaustive legislation. It evidently does not cover the whole field of the law of evidence. The Act frankly admits its limitation and in-exhaustiveness in Section 5(a).”
It will be clear therefore that the effect of section 5 (a) of the repealed Evidence Act was to permit evidence in respect of which the Act was silent to be admitted where such is permitted by other legislation or the common law. This provision is not reproduced in the new Evidence Act however, in its place, section 3 of the new Evidence Act provides:
“ Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria.” The wording of the above provision will clearly not accommodate importation of common law rules of admissibility as section 5 (a) of the old Act did. Under the new Act, if a Court is faced with a situation such as that in R. v. Itule where the Evidence Act is silent on admissibility and only the common law permits the admission of the evidence in question, it would appear difficult to find a basis for the application of the common law.
On the received English law, Section 32 (1) of the Interpretation Act Cap 123 LFN 2004 provides as follows:
“Subject to the provisions of this section and except in so far as other provision is made by any Federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1st day of January, 1900, shall, in so far as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria.”
The argument that common law rules on admissibility will apply in our evidence law may however be opposed on the strength of the express provision of section 1 of the Act:
“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…”
Clearly, the lawmakers believe that the new Evidence Act is exhaustive and that while it is in force there would be no need to resort to the common law. It remains to be seen how the courts will handle situations where evidence which is not specifically admissible under the Act is sought to be admitted under common law rules.
In conclusion, the provisions of the Act mirror the old law mutantis mutandis. Clearly, the Evidence Act 2011 has largely addressed the pressing lacunae in our law of evidence, and it is hoped that the judiciary will be more practical and nimble in the giving of life to the letters of the Act. The Evidence Act 2011 is a positive step in the direction of solving some of the problems identified in Nigeria’s law of evidence. A very important introduction in the Act is the provision of Section 255 which empowers the minister of Justice to make regulations prescribing further conditions in respect of the admissibility of any class of evidence relevant under the Act. This will further strengthen the authority already residual in the section 3 of the new Evidence Act.

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