EVIDENCE 1.5 SOME SALIENT PROVISIONS OF THE EVIDENCE ACT BRIEFLY EXAMINED
SOME SALIENT PROVISIONS OF THE EVIDENCE ACT 2011 BRIEFLY EXAMINED.
SECTION 4: facts which (though not in issue but) are so connected with the fact in issue as to form part of the same transaction are relevant…
This above provision has been referred to as the statutory representation of the common law principle of Res Gestae. The common law principle makes relevant, statements or acts which are closely connected with the facts in issue in terms of time, place or circumstances of the events.
Common law required that:
- The statement must relate to the act-Agassiz V London Tramway Ltd (1873) WR 199. Where after a collision, the conductor retorted; “he has already been reported ofr he has been off the line five or six times today, he is a new driver”. The court rejected this statement as it related to past acts and did not relate to the collision.
- The statement must come from the actor-R V Fowkes. In Teper V R, the statement; “I shouldn’t have done it” made by the actor two minutes after he had fallen into a bath of acid was admitted.
- The statement must have been contemporaneous with the act- R V Bendingfield (1879) 14 Cox CC 341. The deceased had come out of the room where the accused was with her throat slashed, and she managed to say; “oh auntie, see what Harry has done to me”. The court rejected the statement because it was said after the act. R V Christie, the accused was charged with assaulting a boy. When the police asked the boy to identify the person, he pointed at the accused and said “this is the man”. Court rejected the statement. R V Bang. The position shifted from strict contemporaneity to proximate contemporaneity with Ratton V R, R V Nye and Loan, R V Andrew.
The issue is that the court does not want the other party to fabricate a statement.
This question is:
- Is Res Gestae the same as Section 4?
- Are Nigerian Courts justified in admitting Res Gestae?
On the first question: Post Ratten V R (1972) AC 378. cases changed the law from strict contemporaneity to proximate contemporaneity. Thus, res gestae and Section 4 are arguably similar. Salawu V The State 1979 1 NMLR p 249, Udo V The State, Okereke V The State (1988) 3 NWLR pt 540 p 75.
On the second question: The EA did not mention anything like res gestae. Sunday Akpan V The State, Sule Salau V State. Okapoi V State.
In Ishola V The State, it was alleged that the appellant had killed the deceased in the night. Evidence was adduced that he had been having problem with the people of the community including the villagers especially the deceased and there had been cases of prior assault. The court held that these acts are ‘inextricably mixed up with the history of the criminal act itself”.
In Isibor V State, A’s car was snatched. The same car was used to rob the next day. The court held that A could NOT have been involved since his car that was used had been snatched from him.
SECTION 5: Facts which are the occasion, cause or effect of the fact in issue. Evidence proving the cause or causes of a certain happening-R V Stewart (1970) 1 WRL 907, Isibor V The State.
SECTION 6: facts which show motive, preparation and previous or subsequent conduct. Motive was defined as the reason for an act… what propels a person to commit/do an act-Oguntolu V State. Thus, although motive may not be an ingredient of an offence, facts evidencing motive may be deemed relevant and admissible under Section 6-Jimoh Ishola V The State (1978) 9-10 SC 81, in this case, there was a clash between the accused and the deceased which led ot the death of the deceased. Evidence was adduced of the accused’s prior hostile visitations in the area. This showed that he had the intention to commit murder. In Iyaro V The State, the accused drove passengers to a pre-arranged location and sounded his horn for robbers to make away with their valuables, the court construed that he had intention. In Atano V AG Bendel (1988) 1 NSCC 643, a senior manager entered the bank after working hours and locked the entrance. Fire engulfed the building and he escaped unhurt. Construed that he had the intention to burn the building. In Nweke V The State, the intention of the accused to kill his 8 months pregnant wife was construed where the prosecution adduced evidence that he had been treating her badly and denied her pregnancy. AG Ireland V Gallagher.
SECTION 7: facts necessary to explain or introduce fact in issue or relevant fact or which establish the identity of anything or person whose identity is relevant or which fix time or place, the relation of parties and so on may be deemed relevant and admissible. Formerly Section 10.
SECTION 8: things said or done by conspirators after the formation of ther common intention is deemed relevant against any of the conspirators. The conspirator should have been aware of the statement/act. this is an exception to the rule against hearsay evidence-Ubierho V State, especially where the offence is a probable consequence of the prosecution of their unlawful purpose. In Ofor V The Queen, conspiracy was defined. In Osho V State, the court held that once there has been an agreement to execute an unlawful purpose between two or more, this rule begins to apply. In Anthony Enahoro V The Queen (1965) NMLR 265, the court made an exception in instances where one conspirator did not agree to the particular act/particularly warned or objected. In R V Blake and Tye, where the accused conspired to smuggle some goods. The conspirators agreed to smuggle some goods. One of the conspirators smuggled the goods in question and (at the same time) smuggled some other goods too. It was held that the conspirators would be bound by that which they agreed to smuggle and not the other goods which other conspirators did not know about. Balogun V COP (1953) 20 NLR 148.
SECTION 9: provides for when facts otherwise not relevant become relevant
- If they are inconsistent with the fact in issue/relevant fact.
- If they make the existence of any fact in issue probable or improbable.
Akigbade V Alimosho? Ownership of Neighbouring land. Anagbado V Anagbado, the husband sued for divorce alleging that his wife has been maltreating him and abusing him for his deformity. The evidence that they have been able to produce 6 children within the space of 8 years countered the allegation of disunity.
Note that inadmissible evidence would not be rendered admissible by this Section tho. If they do not have connection with the main fact, they would be rejected-Ahmadu V Ngeri.
SECTION 10: facts which would enable/guide the courts in determining the amount of damages to be awarded is relevant.
SECTION 11: facts showing state of mind or body or bodily feeling are relevant if the existence of such state of mind or body is necessary.
SECTION 12 SIMILAR FACTS EVIDENCE: provides for the relevance of facts which tell us whether an act was accidental or intentional. This involves treating like cases alike.
Generally, similar fact evidence is inadmissible-Lord Herschell in Makin V AG New South Wales. In this case, a baby died in the couple’s custody. Evidence was adduced that in the past some other babies adopted by the couples had died in a similar manner. The court held that each case must be independently proved on its own merits. This is the exclusionary rule. He however noted three exceptions:
- If it bears upon the question whether an act was designed or accidental or if it is being used to rebut a defence.
This case has been followed in R V Ball where the accused persons (brother and sister) were being sued for the contravention of the incest law. Evidence was adduced that they have had sexual intercourse and an issue was even born. This was accepted to hold them in contravention of the incest law. Harris V DPP.
Similar fact evidence can be utilized in the following:
:: In proving common origin: Manchester Building V Combs (defective beer from common origin), “My Pikin”, Akerele V R (doctor administered dangerous substance to kid…. Other kids too had died from taking the dangerous substance), Section 35 EA, ownership of adjoining land-Okechukwu V Okafor, Amadi V Ngeri. Section 46 (old)EA; Act of possession and enjoyment of land or adjoining land-Okechukwu V Okafor, Olukoga V Fatunde. Section 7 EA (facts necessary to explain or introduce).
:: Knowledge: to establish knowledge. R V Adeniji, accused for printing and minting fake coins. Counterfeit coins were found in his possession. Interpreted to knowledge. Ogbeide V COP, accused’s dishonoured cheque. Other cheques dishonoured for insufficiency. Held that he knew that his account was insufficient. Receiving stolen property is shown that 12 months preceding the offence, the accused was found with stolen property or within 5 years from date convicted of charge for dishonesty/fraud-Section 36 EA 46 old EA. R V Hough, other forged documents were found in his possession, this was construed to hold that he knew the instant document was a forgery. Section 16 OEA facts showing state of mind, intention, knowledge, good faith, negligence, etc.
:: Pattern of Conduct or modus operandi: R V Smith, insuring wife and soon after the wife would die. Then the husband claims insurance compensation. In the instant case (the third wife), court held that this is the man’s pattern of conduct. Hales V Kerr, unsterilized razor. Section 16 old EA facts showing the existence of any state of mind such as intention, knowledge, etc…
Proof of Identity: applicable at common law. Re Straffen, evidence that the accused had killed two other little girls in the same manner as the intant case amounted to an abnormal propensity exhibited by the accused. Section 7 too makes similar facts which are necessary to introduce, identify, fix tiem, place, etc. the dictum of Hallet J in R V Robinson.
Similar fact evidence may be adduced to rebut a defence available to the accused. Defences like accident, mistake, and so on-Makin V AG New South Wales. Section 17 OEA whether an act was accidental or intentional. This was also reiterated in Makin’s case.
In conclusion, “similar facts” does not appear in the EA but the various Sections may illustrate it. These inelegantly scattered sections should be made into one.
SECTION 13: presumption of acts which would naturally have been done in the course of business. In UBN V Idrisu, the plaintiff denied receiving any statement of account from the defendant for more than 1 year. The court held that this would not be possible since within his course of business (petrol) it would be impossible to operate without a statement of account for up to 12 months.
SECTION 14: entries in books of account or other electronic records regularly kept in the course of business are admissible when they refer to a fact which the court has to inquire. Such books alone are not sufficient to convict a person unless corroborated because they are not conclusive evidence-FBN V Mammon Nigeria Ltd. Corroboration may be by admission of the entries by the opposite party. By Section 51 such entry must be “regularly kept”. In Mukundram V Dayaaram, the court noted that the question of proof that books are regularly kept is a question of fact to be proved if not admitted by the other party.
SECTION 52: an entry in any public or other official book/record stating a fact in issue or relevant fact and made by a person in the discharge of his official duty is itself admissible. This is the equivalent of Section 35 of the Indian Evidence Act.
In Onochie V Ikem, the court noted that
- The statement should be that required to be entered into the book.
- The entry should be into a public or official register/record.
- That the document/entry must have been made by:
- A public servant or
- Any other person required by the law to make the entry: this can also be made in/by his dictation or direction. As the public officer may delegate his duty-Prasad V Emperor
- The entry/document must have been made in the discharge of his official or legal duty
Section 156: Statements of facts in issue or relevant facts made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of Government, as to matters usually represented or stated in such maps, charts or plans, are themselves admissible.
SECTION 54: Statements of public nature in Acts, enactments, Government or State Notice, State or Government Gazette etc. are relevant and admissible subject to Section 106.