WHAT’S NEW ABOUT THE 2011 EVIDENCE ACT

Isaiah Oreweme

The new Evidence Act enacted by the Nigerian National Assembly in June 20111 appeared not
to draw a lot of attention and celebration from the Nigerian public. This cannot however be a
measure of the significance of the changes if any, effected by the Act on the practice of law and
the administration of justice in Nigeria. Indeed, because of the fundamental role played by rules
of evidence, any alteration at all in the law of evidence deserves cognizance and cannot be
safely ignored. The following paragraphs will attempt to examine and comment on the major
changes effected by the Evidence Act 2011.

The Evidence Act Cap E14 2004

The repealed Evidence Act was enacted by the colonial administration2 in 1943 and came into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 Stephen3.

Admissibility of Electronically Generated Evidence in Nigeria

Undoubtedly the most significant innovation of the new Act, the provisions on admissibility and
treatment of Electronically Generated Evidence may provide a welcome solution to this hitherto
unsettled aspect of our law of evidence. Following is a brief background on the law on
electronically generated evidence in Nigeria.

The repealed Evidence Act was created before the advent of development in information and
communication technology. The Act employs some generally unhelpful concepts and language
in its provisions on documentary evidence, resulting in an unsettled situation as to the treatment
to be given to electronically generated evidence.4 Provisions such as the definition of
“document” in section 2 and the provisions on documentary evidence in sections 38, 91 and 93
to 97 do not seem to contemplate admission of documents other than paper documents. We
have in our law, judicial precedents against the admissibility of this class of evidence as well as
others in favour of its admissibility. In the case of Esso West Africa Inc. V. T. Oyegbola5, the
Supreme Court commented obiter on the desirability of according recognition to computer
generated evidence as follows:

1
The Evidence Act 2011 was enacted on June 3, 2011; precisely 66 years after the former Evidence Act came into effect. The
former Evidence Act came into force on June 1, 1945 after having been passed into law as the Evidence Ordinance in 1943.
2
The administration of Sir John Macpherson enacted the Evidence Ordinance.
3
Published in 1887 as part of efforts toward codification of the law of evidence in England. These efforts were unsuccessful in
England but Sir Stephen’s Digest formed the basis of the Evidence Acts of India (1872) and Nigeria (1945).
4
See generally, Professor Yemi Osinbajo, SAN, Electronically Generated Evidence published in Chief Afe Babalola (ed.) The Law
and Practice of Evidence in Nigeria, Sidon Printers, Ibadan, 2001 page 243. See also Idara Akpan, Admissibility of Electronically
Stored Information (ESI) Evidence under the Nigerian Evidence Act” available at www.nichekonsult.com.
5
(1969) NMLR page 194.

Electronic
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 “The law cannot be and is not ignorant of the modern business methods and must not
shut its eyes to the mysteries of computer. In modern times reproduction and inscriptions
on ledgers or other documents by mechanical process are common place and Section
376 cannot therefore only apply to books of accounts.”7

A few years after making the above observation however, the Supreme Court made another
obiter statement in Festus Yesufu v. ACB8 which has been cited in support of the view that
computer generated evidence is not admissible under the repealed Evidence Act.

“...while we agree that for the purpose of Sections 96 (1) (h) and 37 of the Act, “bankers
books “and “books of account” could include “ledgers cards”, it would have been much
better, particularly with respect to a statement of account contained in document
produced by a computer, if the position is clarified beyond doubt by legislation as had
been done in England in the Civil Evidence Act...”9

Despite being made obiter, lower courts can hardly ignore the apex court‟s comments especially
when faced with notoriously recondite questions. As a result, both of the above statements have
been relied upon by the lower courts with conflicting results and until the enactment of the new
Evidence Act, the status of computer generated evidence was at best controversial. In the case
of Trade Bank v. Chami10 the Court of Appeal interpreted Section 38 of the old Evidence Act as
permitting admission of computer print-outs. Citing the Supreme Court‟s comments in
Oyagbola’s case, the court held as follows:

“The section of the Evidence Act does not require the production of “books of account”
but makes entries into such books relevant for admissibility. Exhibit 4 is a mere entry in
the computer or book of account. Although the law does not talk of “computer” or
“computer print-out” it is not oblivious to or ignorant of the modern business world and
technological advancement of the modern jet age. As far back as 1969, the Supreme
Court in the case of Esso West Africa v. T. Oyegbola (1969) NMLR 194 at 198,
envisaged the need to extend the horizon of the section to include or cover computer
which was virtually not in existence or at a very rudimentary stage at that time... On this
authority, the provisions of S. 38 covers, in my respectful opinion, also electronic
processes such as computer and the computer print-outs comprised in Exhibit 4 are
admissible...” 11

The Court of Appeal however reached the opposite decision in UBA v. Sani Abacha Foundation
for Peace and Unity (SAPFU)12. Applying the dictum of the Supreme Court in Yesufu v. ACB,

6
Not that the provision of the said section 37 later became section 38 of Cap E14, LFN 2004, and is now contained in section 51
of the Evidence Act 2011.
7
Supra. at pages 216 – 217.
8
(1976) 1 All NLR (Prt.1) 328.
9
Supra. at page 524.
10
(2003) 13 NWLR (Prt.836) 158.
11
Supra, Per Salami, JCA, at Page 216.
12
(2004) 3 NWLR (Pt. 861) 516

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the Court of Appeal held that a statement of account contained in a document produced by a
computer could not be admitted in evidence under the current Evidence Act until certain
sections of the Act were amended:

“Though the Appellant’s counsel made reference to the modern day practice of using
computer in the day to day business of the bank, it is my opinion that the law still
remains as it is. It has not been amended by the National Assembly, although it is high
time they did that and I am bound to apply the law as it is....It is quite unfortunate that in
Nigeria no clarification has yet been done by way of amendment or promulgation of an
Act to exempt the statement of account contained in a document produced by a
computer from the conditions stated in Section 97 of the Evidence Act 1990. Hence, I
will not deviate from my primary function in interpreting the law as made by the
legislature to that of law making. I therefore hold that the lower court was in error when it
admitted Exhibit D2 in evidence in this case. 13

In the case of Elizabeth Anyaebosi v R T Briscoe Nigeria Ltd14 and more recently in Unity Life
and Fire Insurance Co LTD v. IBWA Ltd15, the Supreme Court held that computer print outs are
admissible in evidence. Despite the existence of these recent precedents, the Court of Appeal
refused to admit computer print-outs as secondary evidence of entries of a banker‟s book in its
subsequent decision in Nuba Commercial Farms Ltd & Anor. v. NAL Merchant Bank Ltd &
Anor16. The Court of Appeal later reached the opposite decision when it reversed a Federal
High Court decision in FRN v. Femi Fani-Kayode17, and held that a computer generated
statement of account was admissible as secondary evidence.

Electronically Generated Evidence under the 2011 Act

The conflicting decisions cited above illustrate the problematic situation the nation has endured
until the enactment of the 2011 Evidence Act. In the light of this background, the significant
provisions of the Act relating to electronically generated evidence will be highlighted below.

Definition of Document
Section 258 of the Act has expanded the definition in the old act to make provision for modern
technology. „Document‟ is now defined to include inter alia, “any device by means of which
information is recorded, stored or retrievable including computer output”. The definition also
encompasses any “disc, tape, sound track or other device in which sounds or other data are
embodied so as to be capable (with or without the aid of some other equipment) of being
reproduced from it”. Obviously, this definition is an attempt to put to rest the controversy as to

13
Supra at page 543
14
(1987) 3 FWLR (Pt. 59) 84
15
(2001) 7 NWLR (Pt.713) 610
16
(2001) 16 NWLR (Prt.740) 510. The Court held that Section 97 (1) (h) of the Evidence Act does not contemplate information
stored other than in a book.
17 th
See AELEX Quarterly, 4 Quarter Issue 2010, available at http://www.aelex.com/dec.htm. See also a critique of the Federal
High Court’s decision in this case (FHC/L/523C/08 of 26/3/2009) in “Why computerised statement of account is admissible as
evidence in Nigerian Courts” by Professor Taiwo Osipitan, published in Thisday Newspaper of March 27, 2009, also available at:
http://www.nigerianlawguru.com/articles/practice%20and%20procedure/WHY%20COMPUTERISED%20STATE
MENT%20OF%20ACCOUNT%20IS%20ADMISSIBLE%20AS%20EVIDENCE%20IN%20NIGERIAN%20COURTS.pdf.

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the status of tapes, various types of CDs, memory cards and other electronic storage media as
they are now recognised as documents. Also included is the definition contained in the old
Evidence Act. The definition spans four paragraphs, apparently, in an attempt to capture all
possible forms of documents.

It is suggested that it would be more helpful or more efficient to define „document‟ by stating its
nature or character18 rather than listing examples. It is certainly possible that the range of
materials accepted as documents today (electronic documents included) may soon be rendered
obsolete by advancement in knowledge and technology. This is bearing in mind that a major
flaw in the old Evidence Act was its definition of „document‟ as “…books, maps, plans…”
thereby conveying the idea that only tangible materials similar to books are covered19. An
example of a definition that attempts to avoid this situation is found in section 13 of the United
Kingdom‟s Civil Evidence Act of 1995:

“Document” means anything in which information of any description is recorded, and

“copy”, in relation to a document, means anything onto which information recorded in the
document has been copied, by whatever means and whether directly or indirectly.”20

Also introduced in section 258 of the Act is the definition of “a copy of a document”, which
includes a transcript21 of the content of a storage device. This will obviously permit admission of
a written reproduction of the audio or video content of a CD for instance, where the proper
foundation for secondary evidence is laid.22

Section 84: Evidence Produced By Computers

The Act provides in section 84 for the admissibility of documents produced by computers.
Section 84 (1) provides 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 is shown that the conditions in subsection (2) of this section are satisfied
in relation to the statement and computer in question.”

18 th
According to the American Heritage Dictionary, 4 Edition, 2006, ‘definition’ means “A statement conveying fundamental
character”.
19
This is in line with the ejusdem generis rule of statutory interpretation which requires that when a list of two or more specific
words is followed by a more general description, the otherwise wide meaning of the general description must be restricted to
the same class, if any, of the specific words that precede it. See Bucknor Maclean v. Inlaks Nig.Ltd (1986) 8-11 SC.
20
See also the comments of Darling J. in The King v. Daye, (1908) 2KB 333, “Any written thing capable of being evidence is
properly described as a document and that it is immaterial on what the writing may be inscribed. So I should desire to guard
myself against being supposed to assent to the argument that a thing is not a document unless it be a paper writing. I should
say it is a document no matter upon what material it be, provided it is writing or printing and capable of being evidence.”
21
I.e. a written or printed version of a recording contained in a tape, CD, memory card, hard disk etc.
22
A foundation must be laid before tendering secondary evidence (copies, etc.), this entails adducing any of the statutorily
recognised excuses for the non production of the original of the document. See sections 88, 89 and 90 of the Evidence Act
2011, which are an exact reproduction of the provisions of sections 96 and 97 of the Evidence Act 2004.

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This provision clearly intends to make print-outs from computers and other computer generated
matter admissible in evidence.23

One minor observation on this section is that perhaps the wording would have been more
elegantly phrased as “a statement contained in a document produced from (instead of by) a
computer”, considering that the production of a document will most likely entail human
involvement. Even where the document is produced by an automated electronic process e.g.
log entries, apparently without human interference, the fact remains that the computer or
equipment is owned and used by a person or organization. The document would therefore be
better described as having been produced from the computer instead of by the computer.

A more serious observation arising from the provision of section 84 is that while a computer
generated document is said to be admissible, it must still be proved by the proper form of
primary or secondary evidence as specified in sections 88, 89 and 90 of the Act24. This is
because it is said to be a document and section 85 provides that “the contents of documents
may be proved either by primary or by secondary evidence.” The definitions of primary evidence
and secondary evidence are contained in sections 86 and 87 respectively. The relevant portions
of the sections are as follows:

86. (1) Primary evidence means the document itself produced for the inspection of the
court.

(4) Where a number of documents have all been made by one uniform process as in
the case of printing, lithography, photography, computer or other electronic or
mechanical process, each shall be primary evidence of the contents of the rest,
but where they are all copies of a common original, they shall not be primary
evidence of the contents of the original.

87. Secondary evidence includes -…..

(b) Copies made from the original by mechanical or electronic processes which in
themselves ensure the accuracy of the copy and copies compared with such
copies.

(c) Copies made from or compared with the original.

It may be difficult to apply the strict concepts and requirements of primary and secondary
evidence to electronic documents produced in the course of electronic transactions or electronic
correspondence without conceptual inconsistency. For instance where e-mail correspondence
exchanged by parties is sought to be proved, several questions arise including, (i) what will

23
Such as the computer generated statement of account which the Federal High Court in FRN v. Femi Fani-Kayode held to be
inadmissible under section 97 of the Evidence Act 2004.
24
Sections 889, 89 and 90 of the 2011 Act contain the same provisions in sections 96 and 97 of the 2004 Act, on primary
evidence and the instances where secondary evidence may be given in proof of a document.

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constitute primary evidence of the correspondence, (ii) whether secondary evidence will be
permitted25 and (iii) what form of secondary evidence will be permitted26.

In the above scenario, each e-mail is contained in the sender‟s computer (or computer based
device such as a smartphone) the e-mail is also contained in the computer of the sender‟s e-
mail service provider, as well as the computers of the recipient and his service provider. The e-
mail may also be contained in several other locations if the sender‟s computer or that of the
recipient is part of a network. What is the “document itself”27 or the primary evidence of the e-
mail to be produced for the inspection of the court in this instance; will a print-out obtained from
just any of the aforementioned locations suffice as primary evidence, if all of them are
completely identical in content, size, etc? It appears that the actual “document (e-mail) itself” is
intangible, only consisting of characters and notations in the sender‟s computer which are
transmitted to his email provider for onward transmission to the recipient and perhaps a host of
other locations.

Admissibility of Computer Print-Outs under the 2011 Act

If the analysis in the foregoing paragraph is correct, then a paper print-out of the e-mail from any
of the locations, even from the sender‟s computer will be no more than secondary evidence of
the actual e-mail (see section 87 (b) and (c) reproduced above). This argument is strengthened
by the fact that the e-mail print-out does not appear to fit into any of the forms of primary
evidence listed in section 86 (1) to (4). One could argue that it is primary evidence under section
86 (4) because “computer” is mentioned in that paragraph; also because the process of creating
and sending the e-mail could fit into a strained interpretation28 of “where a number of documents
have been made by one uniform process”29. However, the last two lines of the paragraph do not
support a reference to the print-out as an original: “but where they are all copies of a common
original, they shall not be primary evidence of the contents of the original.”

If it is correct that a print-out of the e-mail is secondary evidence, it will only be admitted if it is
shown to fit into any one of the instances30 specified in section 89, which provides as follows:

89. Secondary evidence may be given of the existence, condition or contents of a

document when-

(a) The original is shown or appears to be in the possession or power

(i) of the person against whom the document is sought to be proved, or

(ii)of any person legally bound to produce it, and when after the notice
mentioned in section 91 such person does not produce it;

25
Section 89 specifies the instances when secondary evidence of documents will be given of the existence of documents.
26
Section 90 provides the types of secondary evidence admissible in each of the permitted instances contained in section 89.
27
In line with section 86 (1).
28
Or at best a very liberal interpretation of the phrase.
29
Section 86 (4).
30
In other words, a proper foundation must be laid for the admission of the secondary evidence by proving that it falls under
any one of the situations in section 89 (a) to (h). See the case of Edokpolo & Co Ltd. v. Sem-Edo Wire Ltd. (1984) 4 NWLR pt. 116
pg. 473.

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 (b) The existence, condition or contents of the original have been proved to be
admitted in writing by the person against whom it is proved or by his
representative in interest;

(c) The original has been destroyed or lost and in the latter case all possible
search has been made for it;

(d) The original is of such a nature as not to be easily movable;

(e) The original is a public document within the meaning of section 102;

(f) The original is a document of which a certified copy is permitted by this Bill or
by any other law in force in Nigeria, to be given in evidence;

(g) The originals consist of numerous accounts or other documents which cannot
conveniently be examined in court, and the fact to be proved is the general
result of the whole collection;

(h) The document is an entry in a banker's book.

Perusing paragraphs (a) through (h) above; it appears unlikely that a print-out of an e-mail will fit
into any one of the specified instances where secondary evidence may be given. Paragraph (d)
appears to come close to accommodating the print-out because it is possible that the computer
which contains the original may be so large that it can be described as being “not easily
movable”. However, modern day computers seldom fit this description.

Are the Provisions on Electronically Generated Evidence Adequate?

The long awaited legislative intervention with respect to admissibility of computer generated
evidence will be undermined if the provisions on primary and secondary evidence remain a
stumbling block in this area31. Under the 2011 Act as it stands, it is possible to object to the
admission of a computer print-out on the ground that it is not primary evidence and that proper
foundation has not been laid for tendering secondary evidence of it under the provisions of
section 89 (a) to (h). Faced with such an argument, there is a real possibility that a court
following the strict provisions of the law will refuse to admit the computer print-out. There are
several possible ways to address this situation in the law, some of which have been applied in
other jurisdictions, these will be highlighted briefly.

Electronic Evidence is Deemed to be Admissible as Secondary Evidence – India

31
It is instructive to note how the Indian Evidence Act deals with a similar problem, i.e. admissibility of print-outs and other
computer generated evidence. The Indian solution is that section 65B of the Indian Evidence Act 1872, which is in pari materia
with section 84 of our Evidence Act 2011, begins thus, “Notwithstanding anything contained in this Act…” this will mean
amongst others that the provision will apply notwithstanding the requirements on primary and secondary evidence. the . Also,
the section provides that the computer generated evidence will be “admissible without further proof or production of the
original, as evidence of the contents of the original…. In other words the computer generated evidence is expressly stated to be
admissible as (secondary) evidence of the original.

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It is interesting to note how the Indian Evidence Act deals with problem of admissibility of print-
outs and other computer generated evidence because its wording is very similar to the Nigerian
Evidence Act. Section 65B of the Indian Evidence Act 1872 provides as follows:

“Notwithstanding anything contained in this Act, any information contained in an

electronic record which is printed on paper, stored, recorded or copied in optical
or magnetic media produced by a computer (hereinafter referred to as the
computer output) shall be deemed to be also a document… and shall be
admissible in any proceedings without further proof or production of the original,
as evidence of the contents of the original….”32

The section opens by indicating that its provisions will not be affected by any other
requirement,33 which will include of course, the requirement of distinguishing between primary
and secondary evidence and showing why secondary evidence should be tendered when
primary evidence is not available.34 The section goes on to dispense with the need for proof of
the original and provides that the computer generated evidence will be admissible as evidence35
of the original.

Elimination of the Requirement of the Original- Australia

In response to the difficulty produced by the requirement of production of the original of a
document,36 section 51 of the Australian Evidence Act37 has abolished this requirement and
provides thus:

“The principles and rules of the common law that relate to the means of proving
the contents of documents are abolished.”38

The requirement of producing the original having been done away with, Section 48 (1) (d) of the
Australian Evidence Act simply provides for proof of electronic documents39 as follows:

“A party may adduce evidence of the contents of a document in question by

tendering the document in question or by any one or more of the following
methods:

32 th
See “Sarkar’s Law of Evidence in India, Pakistan, Bangladesh, Burma and Ceylon” by Sudipto Sarkar, 16 Edition 2007,
Wadhwa and Co. Nagpur, pages 1235 -1237.
33
“Notwithstanding anything contained in this Act”
34
The provisions on primary and secondary evidence, requirements to be met before tendering secondary evidence and the
various types of secondary evidence admissible in specified situations are contained in sections 61 to 65 of the Indian Evidence
Act 1872 which are almost identical to sections 85 to 90 of the Nigerian Evidence Act 2011.
35
This obviously implies that it will be admissible as secondary evidence of the original
36
Which forms part of the best evidence rule.
37
Australian Evidence Act - C2011C00757, No. 2 of 1995 as amended, available at
http://www.comlaw.gov.au/Details/C2011C00757
38
For more clarity, the heading to this section states: “Original Document Rule Abolished”.
39
Such as email, which would otherwise prove difficult applying the strict requirements relating to original and secondary
evidence.

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 …if the document in question is an article or thing on or in which information is
stored in such a way that it cannot be used by the court unless a device is used to
retrieve, produce or collate it — tendering a document that was or purports to
have been produced by use of the device.”

No Requirement of Original- UK
The UK Civil Evidence Act 199540 does not require the original of a document in order to prove
its contents. Section 8 of the UK Civil Evidence Act 1995 provides as follows:

8. Proof of statements contained in documents

(1) Where a statement contained in a document is admissible as evidence in civil

proceedings, it may be proved—

(a) by the production of that document, or

(b) whether or not that document is still in existence, by the production of a copy
of that document or of the material part of it, authenticated in such manner as
the court may approve.

(2) It is immaterial for this purpose how many removes there are between a copy
and the original.

The above provision removes the hardship associated with the age-old requirement of
producing the original of a document and makes no distinction between an original and a copy.
Also when a copy of a document is produced, a safeguard is available as the court is
empowered to require it to be authenticated as it thinks fit.

It is suggested as an additional alternative to all the above, that section 89 of our Evidence Act
which provides instances when documents may be proved by secondary evidence, could be
amended to include a paragraph providing for situations where the original is contained in a
computer. For instance, there would be no controversy about the admissibility of computer print-
outs if section 89 contained an additional paragraph providing as follows:

(i) The original cannot easily be examined by the court because it is an electronic
document of any nature or format or is contained in a computer or other device
for processing, storage or retrieval of data.

A provision such as the above will make it clear that the original is an electronic document
residing in a computer and so the party relying on it is entitled to tender secondary evidence of
this, such as a print-out. It appears however, that it will be better to exempt electronic
documents from the stringent requirements of proving the existence or otherwise of the original

40
The UK Civil Evidence Act 1995 is available online at www.legislation.gov.uk/ukpga/1995/38/section/8

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and tendering secondary evidence because such rules are not suitable for dealing with this
class of documents.

It is hoped that the legislature will take speedy steps to correct this perceived gap in the
provisions on electronically generated evidence; otherwise, the effort already expended in this
area of our law of evidence will be incomplete. It is also necessary for the courts and the legal
community in their eagerness to be rid of the age old obstacles to admissibility of electronically
generated evidence, not to gloss over the requirements of section 89 or assume that the Act
permits admission of computer print outs relying on the provisions of sections 84 and 258
without more. Moreso from the standpoint of advancing e-commerce and also of prosecuting
financial crimes offenders41, who have hitherto taken shelter in technicalities such as that
provided by the inadmissibility of computer print outs, it is best to amend the Act without delay.

Apart from its provisions on electronically generated evidence, the 2011 Act includes further
innovations and alterations worth mentioning. Other noteworthy changes effected by the Act are
highlighted below42.

Section 5 (a) of the 2004 Act and section 3 of the 2011 Act
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. Section 3 of the new Evidence Act however, specifically provides only for
evidence that is admissible under other legislation in force in Nigeria. Section 5 (a) of the old Act
provided as follows:

“5. Nothing in this Act shall-

(d) Prejudice the admissibility of any evidence which would apart from the
provisions of this Act be admissible.”

A good illustration of the import of this provision is provided by the case of R. v. Itule43. 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).”

41
See Nuhu Ribadu Esq., “Obstacles to Effective Prosecution of Corrupt Practices and Financial Crime Cases in Nigeria” available
online at nigerianlawguru.com. Also, TI Akomolede, “Contemporary Legal Issues in Electronic Commerce in Nigeria”
Potchefstroom Electronic Law Journal, Volume 11, Issue 3.
42
See Norrison I. Quakers SAN: “The Difference is Clear”, published in Thisday Newspaper (Thisday Lawyer page ix) on Tuesday,
July 26, 2011. Also Professor Yemi Akinseye George: “Why the Old Act Had to Go” published in Thisday Newspaper (Thisday
Lawyer page viii) on Tuesday, July 26, 2011
43
(1961) ALL NLR 462. See also the case of Onyeanwusi v. Okpupara (1953) 14 WACA 21 at 311.

10

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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)”.44

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:

“3. 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. It could be argued that are part of Nigerian
law, being part of the received English 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 m 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…”

Perhaps 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.
Section 14: Illegally Obtained Evidence
Section 14 and 15 of the Act introduce a discretion on the part of the court to exclude improperly
or illegally obtained evidence. Section 14 and 15 provide as follows:

44
“Why Computerised Statement of Account is Admissible as Evidence in Nigerian Courts” by Prof. Taiwo Osipitan, published in
th
the Daily Independent Newspaper, 9 April 2009. See footnote 15 above.

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 14. Evidence obtained-

(a) Improperly or in contravention of a law; or

(b)In consequence of an impropriety or of a contravention of a law;

Shall be admissible unless the court is of the opinion that the desirability of
admitting the evidence is out-weighed by the undesirability of admitting
evidence that has been obtained in the manner in which the evidence was
obtained.

15. For the purposes of section 14, the matters that the court shall take into
account include-

(a) The probative value of the evidence; under section 14;

(b) The importance of the evidence in the proceeding;
(c) The nature of the relevant offence, cause of action or defence and the
nature of the subject-matter of the proceeding;
(d) The gravity of the impropriety or contravention;
(e) Whether the impropriety or contravention was deliberate or reckless;
(f) Whether any other proceeding (whether or not in a court) has been or is
likely to be taken in relation to the impropriety or contravention;
(g) The difficulty, if any, of obtaining the evidence without impropriety or
contravention of law.

Apparently, the above is an attempt to codify the current thinking in most common law
jurisdictions on the subject of illegally obtained evidence. Regardless of the said discretion to
exclude evidence, it will be readily seen from judicial precedents in this area that courts lean in
favour of admitting relevant evidence regardless of the manner through which it was obtained.45
In Torti v. Ukpabi46 and Sadau v. State47 the Supreme Court espoused the common law
position described in the famous dictum of Crompton, J in R. v. Leatham48:

“(if the evidence is relevant), It matters not how you get it, if you steal it even, it
would be admissible in evidence.” 49

45
Note that the United States takes the opposite stance, employing the “Exclusionary Rule”, by which evidence obtained in
violation of the Defendant’s constitutional rights is sometimes inadmissible. See the cases of Weeks v. United States (1914) 232
U.S. 383, and Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385. There is also a school of thought which canvasses
that the court should try to balance the interest of the state in ensuring that an accused person is brought to justice with the
accused person’s rights which may have been affected by the illegal means through which the evidence was obtained. See
generally, “The Exclusion of Illegally Obtained Evidence” a study paper Prepared by the Law of Evidence Project of the Law
Reform Commission, Department of Justice, Ontario, Canada.
46
(1984) 1 SCNLR 214.
47
(1968) 1 All NLR 124. In Musa Sadau v. State incriminating materials alleged to have been found in the accused’s house
during an unlawful search (the search contravened section 78(1) of the Criminal Procedure Code) were admitted in evidence.
48
(1861). 8 Cox CC 498 at 501) see also Kuruma son of Kaniu v. R 1955 (AC) 197 at 203.
49
See also the more recent case of Dr. Olusegun Agagu v. Rahman Olusegun Mimiko CA/B/EPT/342A/08

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Internationally accepted jurisprudence in this area however recognizes as an important
exception to this rule, evidence obtained by means of torture.50 According to Peter Murphy in
Murphy on Evidence:51

“Whatever may be the rule with respect to evidence obtained by illegal means; evidence
obtained by means of torture constitutes an exception and will never be admitted in
judicial proceedings in this country, (i.e. England). This rule applies alike to civil and
criminal proceedings”52.

This position on evidence obtained from torture is enshrined in international instruments such as
the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment 198453, to which Nigeria is a signatory. Nigeria also ratified this
instrument in 2001. Sadly, in Nigeria torture is not handled with the seriousness it deserves and
there is no clear rule against the admissibility of evidence obtained through torture. In fact
Nigeria does not have any codification on the crime of torture54. It is submitted that the rule
excluding evidence obtained through torture ought to be codified in no less a legislation than the
Evidence Act; its absence therefore leaves a yawning gap in the law on this subject.

Definition of Hearsay Evidence

The Act provides a definition of hearsay in section 37 as follows:

37. Hearsay means a statement-

(a) oral or written made otherwise than by a witness in a proceeding; or
(b)contained or recorded in a book, document or any record whatever, proof of
which is not admissible under any provision of this Bill, which is tendered in
evidence for the purpose of proving the truth of the matter stated in it.
38. Hearsay evidence is not admissible except as provided in this part or in any
other provision of this or any other Act.

Thereafter, the Act goes on to provide in sections 39 to 58, for exceptions to the hearsay rule
including dying declarations, statements made in the course of business and statements made
against the interest of the maker, all of which were contained in the repealed Act55.

Recognition of Marriages under Customary Law and Islamic Law

50
See on this point the House of Lords decision in A & others v. Secretary of State for the Home Department (2006) (No.2) AC
221. See particularly the comments of Lord Bingham at page 51.
51
Oxford University Press, 2007.
52
Supra at page 56
53
Article 15 provides that signatory nations must ban the use of evidence produced by torture in their courts.
54
There is no crime of torture in Nigerian criminal law, see “Interim Report on the Nigerian Police” by the Network for Police
Reform in Nigeria (NOPRIN) available at www.noprin.org/NoprinPoliceSummary-10Dec-07.pdf. This is a backward situation
considering that even nations like China have banned the use of evidence obtained through torture in courts. See “China Bans
Evidence obtained from Torture” at http://www.bbc.co.uk/news/10198592. Thankfully however, there is (at the time of this
paper) an Anti Torture Bill pending before the House of Representatives sponsored by Hon, Nkeiruka C. Onyenjeocha.
55
See Sections 33 to 48 of the Evidence Act Cap E14 2004.

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In section 258 of the Act, "Wife" and "husband" are defined respectively to include the wife and
husband of a marriage under Islamic law or a customary law applicable in Nigeria, in addition to
a marriage under the Marriage Act. The Act thereby removes the discrimination between the
various forms of marriage in the country.

Presumption of Marriage
Section 166 codifies the common law presumption of marriage from proof the fact of
cohabitation as husband and wife by a man and woman.56

Paternity v. Legitimacy of Children

In Section 44 (2) (b) of the Act, paragraphs (i) and (ii) on statements relating to the existence of
a relationship use the term “the question of the paternity of any child” instead of “the question of
the legitimacy of any child”57. This apparently minor amendment brings the provision into
harmony with modern ideas on human rights especially the rights of children and the right to
freedom from discrimination; which rejects classification of children as legitimate and
illegitimate. The Child Rights Act 2003 prohibits discrimination against any child based on the
circumstances of his birth58. A similar right is also provided for all citizens of Nigeria in section
42 (2) of the 1999 Constitution59.

Documents Marked “Without Prejudice”

Section 196 codifies the rule that statements in documents marked "without prejudice" made in
the course of negotiation for settlement of a dispute out of court cannot be given in evidence60.

Conflicts in Affidavit Evidence

Section 116 codifies the rule that irreconcilable conflicts arising in Affidavit evidence are to be
resolved by calling for oral evidence.

Cautionary Statement
Section 206 now requires that a witness be cautioned with a prescribed statement before being
allowed to give sworn testimony.

Standard of Proof in Civil Cases

Section 134 of the Act provides a codification of the standard of proof in civil cases which was
not contained in the former Evidence Act. The burden of proof is to be discharged on the
balance of probabilities. Section 137 also provides that this is the standard of proof in criminal
cases where any law places on the Defendant the burden of proving any fact.

56
See the case of Aronegary v. Vaigalie (1881) 6 AC 364 at page 371.
57
As was contained in section 33 (2) (b) (i) and (ii) of the Evidence Act cap E14 LFN 2004.
58
This is based on the United Nations Convention on the Rights of the Child 1989 (CRC), and also the African Union Charter on
the Rights and Welfare of the Child (CRCW) of 1990. Nigeria is a party to both International Instruments and ratified them in
1991 and 2000 respectively.
59
See Articles 18 and 28 of the African Charter on Human and Peoples' Rights 1981, domesticated in Nigerian law through the
African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act Cap A9 LFN 2004.
60
See Fawehinmi v. NBA (No. 2) (1989) of NWLR (Pt.105) 558.

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Judicial Notice on Matters of Common Knowledge
Section 124 requires the Court to take judicial notice of facts that constitute common knowledge
and are not reasonably open to question. This practice, referred to as judicial notice of notorious
facts, was hitherto applied in Nigerian courts through reliance on the case law especially from
the common law61. Parties are also entitled to address the Court on information which is alleged
to constitute common knowledge.62

Examination of Documents in respect of which State Privilege is Claimed

Under the proviso to section 190 the Court is empowered to order that documents in respect of
which state privilege is claimed be produced for the consideration of the Judge in chambers.
The judge may thereafter order the said evidence to be received in private. This is a codification
of modern reasoning on the subject, expressed in cases such as Conway v. Rimmer63. This
provision is a departure from the position in section 167 of the repealed Evidence Act under
which the Court was not empowered to require such evidence to be produced64.

Unsworn evidence of Children

With respect to children below 14 years, section 209 (1) of the Act states positively that they
shall not be sworn and shall give evidence otherwise than on oath if the prescribed conditions
are met. This is in contrast to the provision of section 183 (1) and (2) of the repealed Act which
states that evidence of a child may be received though not on oath.

In addition, section 209 (2) provides that a child who has attained 14 years shall give sworn
evidence. The repealed Act contained no such provision and did not describe children by
reference to any specified age.

Conclusion
The Evidence Act 2011 is a positive step in the direction of solving some of the problems
identified in Nigeria‟s law of evidence. Considering the pervasive importance of this area of the
law however, lawmakers, lawyers, the judiciary and all stakeholders should not be satisfied too
quickly at whatever level of progress the new Evidence Act represents. The Nation deserves to
have the best possible standards for its administration of justice and the law of evidence is
pivotal to achieving this. The recommendations in this paper are by no means exhaustive, but it
is hoped that this modest attempt and that of other well meaning commentators65 and observers
will be useful in furthering the progress made in this area of the law.

61
See the cases of R. v. Luffe (1807) 8 East 193 and Priesty Jones v. Priesty Jones (1951) AC 391
62
See section 134 (3) of the Evidence Act 2011
63
(1968) AC 910, HL
64
This was in line with the principle referred to as “Crown privilege” brought to the fore in cases such as Duncan v. Cammell
th
Laird (1942) AC 624, HL. For the modern jurisprudence in this area, see generally, Phipson on Evidence, 16 Ed., London Sweet
& Maxwell 2005 Chapter 25, pages 683 to 691.
65
See for instance, Ademola A. Adewale, “Current Issues in the Law and Practice of Evidence” available online at
http://squibguest.blogspot.com/2008/06/current-issues-in-law-and-practice-of.html.

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