Why is it important to study the source of anything? Especially the sources of Evidence? After all, it’s already there and complex enough. Why go looking for any more of it? I’ll tell you why.
The sources of the Law of Evidence in Nigeria are important for two reasons. First, nothing springs from nothing. Everything has a source and understanding this source is often vital to grasping the nature and context of that thing. Knowing the sources of evidence gives you a keen insight into the operation of the Law of Evidence in Nigeria.
Second, a good understanding of the sources of evidence is key to recognizing rules of evidence. You would be quite justified if you said that evidence in Nigeria is governed by the Evidence Act alone. You’d be wildly wrong though. Rules of evidence exist in numerous places and it is a knowledge of these sources that helps you identify them.
What Sources of Evidence Law Mean
That being said, a working description of what we would be concerned with as sources of evidence is in order. The sources of evidence are those places from which the rules of evidence can be seen and applied. Thus, anywhere that you can find rules of evidence is a source.
They are those wellsprings that lend validity to rules of evidence. This is quite important because some rules of evidence are just plain common sense. For instance, the rule that a person’s confessional statement implicates him is just logical.
However, you can’t walk into a court of law and try to convince the judge that a person’s confessional statement should implicate him because nothing is more logical. You’d fall flat on your face. Thus, the sources of evidence are the wellsprings that give rules of evidence, even the logical ones, force of law.
What are the Sources of Evidence Law?
The sources of evidence in Nigeria are: the Constitution, the Evidence Act, Case law, Customary law and to a lesser extent, the Received English law.
Often called the “grundnorm” and the “fons et origo” of all laws in Nigeria, it would be quite absurd if we didn’t start with the constitution as the primary source of evidence. This is because the Nigerian constitution unequivocally declares itself supreme and the standard for all other laws in Nigeria.[i]
Apart from its provision for the power of the legislature to make law, the 1999 constitution of Nigeria (as amended in 2011) provides for some rules of evidence that are considered basic in law. These rules of evidence are primarily contained in Chapter IV, particularly S. 36.
From that section, the following rules of evidence are made relevant:
- Fair hearing: The provision of s. 36(1) entitles any person brought before a court or tribunal to fair hearing. The court or tribunal must be organized and take evidence in such a manner as to secure its independence and impartiality. This in effect, makes it compulsory for every judicial proceeding to be conducted on the basis of the twin towers of Natural Justice: fair hearing and freedom from bias or interest. This is the first and most basic rule of evidence.
- Presumption of Innocence: This is another cardinal rule of evidence although its application is limited to only criminal matters. The constitution, in s. 36(5), entitles every person charged with a criminal offence to be presumed innocent until proven guilty. In the case of FRN v Saraki,[ii] the tribunal reiterated this principle in favour of the Nigerian Senate President when the prosecution alleged that it fell to him to prove his innocence and not on them to prove his guilt for breaching the Code of Conduct for Public Officers.
- Time and facility for preparing defence: Implicit in this rule, encased in s. 36(6)(b), is the right of a person to seek and obtain reasonable adjournments from the court so he can prepare his defence.
- Right of Defence: It is another basic rule of evidence that an accused must have representation before the court.[iii] He can defend himself in person or by a legal practitioner of his choice.[iv]
- Right of Cross Examination: Every person is entitled to face his accusers in court. The rule extends to being allowed to examine one’s own witnesses on the same conditions as those applying to witnesses for the other side.[v]
- Right to an interpreter: It is considered absolutely vital, under s. 36(6)(e), that an accused be afforded an interpreter if the court’s proceedings are not in a language that he understands.
- Record by the court: This rule requires the court to keep a record of the proceedings and provide them to the accused on request.[vi]
- Legal Offences: Any offence alleged to have been committed by an accused person must be known to law. In Aoko v Fagbemi,[vii] the prosecution sought to convict the accused for adultery which is not an offence in southern Nigeria. The court held that there could be no such offence.
Nigerian Legislation: The Evidence Act
Apart from the constitution, this is the second most authoritative source of evidence in Nigeria. The legislature has wide powers to make law under the constitution.[viii] The Evidence Act 2011 was made pursuant to these powers.
The Evidence Act provides for the rules of evidence and no evidence can be given in court except as allowed under it.[ix] The Act however widens the sources of evidence to include rules of evidence in other Nigerian legislation. It provides under s. 3 that nothing shall prejudice the admissibility of any evidence made admissible under any other Nigerian legislation validly in force in Nigeria.
Under this section, rules of evidence can be gotten from other legislation in Nigeria. For instance, the provision of s. 30 Criminal Code which says no child below the age of 7 can commit a criminal offence becomes a rule of evidence that all courts must apply.
This source of evidence is a recognition of the social organization of Nigeria. It is recognized under the Evidence Act and the Constitution.[x] This source allows for rules of evidence that have been in operation in a society and are accepted by members of that society as binding on them.
For instance, under this source, the rules of succession under the various customs of the land are made applicable as rules of evidence. Thus, when the matter before the court concerns inheritance under any custom, the court can take evidence and decide the case on the basis of those customs.
It must be noted however that customs are regarded as fact in Nigeria and they must be proved to exist before the court will rely on them. The only exception to this is where the court has previously made a decision involving such custom.
The application of Islamic rules of evidence is very limited in Nigeria. As a source of evidence, it largely applies in relation to Islamic personal law. It is primarily used by Sharia Courts of Appeal and Area courts.
However, Islamic rules of evidence can be considered by a superior court when such matters are on appeal before it.[xi]
The Nigerian legal system is of Common law origin. In light of this origin, the doctrine of judicial precedent is a mainstay of the legal system.
The doctrine simply means that decisions of higher courts on matters affecting any issue before them are binding on all courts below them. Once the matter before the lower court is similar to the one that the higher court decided on, the lower court is expected to follow the decision.
This duty of lower courts to follow decisions of higher courts simply entrenches the decision and makes it essentially have the force of law. This is why it is called case law.
Case law will be a source of evidence where a superior court has made a decision that involves rules of evidence. For instance, the court, in Navy v Lambert,[xii] held that the guilt of an accused person can be proved before a court by direct evidence of eyewitnesses, circumstantial evidence or a confessional statement.
The Received English Law
As mentioned earlier, the Nigerian legal system is of Common law origin. Due to this, the bulk of formal laws applicable in Nigeria before and, to some extent, after independence are simply an adaptation of their English counterparts. The law of evidence was no different.
The first law on Evidence in Nigeria was the Evidence Ordinance 1945. It was simply an adaptation of a treatise on the Common law rules of evidence called “Steven’s Digest on the Law of Evidence”. This ordinance eventually became localized as an Act after independence and continued to apply with no amendments until a new Act was made in 2011.
The Old Act specifically made rules of evidence from foreign jurisdictions applicable. This was accomplished by its s. 5(a). Under this provision, foreign rules of evidence like “res gestae” were continually applied in Nigeria even after independence.
The Nigerian courts also utilized the provision to admit evidence that was not envisaged under the Act. For instance, in R v Itule,[xiii] the court had to consider whether it should admit a confessional statement that helped the accused’s case. The court admitted the evidence using common law rules.
However, since the enactment of the new Evidence Act 2011, the Received English law can no more be a source of evidence in Nigeria. This is because s. 3 of the new Act only recognizes evidence made admissible by any other Nigerian legislation validly in force. As such, the Received English law now has only historical significance in Nigeria and can be nothing more.
Now that you’re armed with a knowledge of the sources of evidence, you have the necessary foundation to examine the rules found in these sources in more depth.
[i] by virtue of its s. 1
[iii] s. 36(6)(c)
[iv] It was however held in Awolowo v Seriki that the accused’s choice of legal practitioner must not have any disability under the law. If he does, the accused may not have him as counsel.
[v] s. 36(6)(d)
[vi] s. 36(7)
[vii] (1963) 1 All NLR 400
[viii] s. 4 and Item 23, Part I, 2nd schedule
[ix] s. 1 Evidence Act
[x] s. 16 Evidence Act and s. 267 & 282 of the constitution
[xi] See ss. 233, 246, 262 and 277 of the constitution
[xii] (2007) MJSC 1
[xiii] (1961) 1 All NLR 462
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