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18 Jan

EVIDENCE 2.4 CHARACTER EVIDENCE

CHARACTER EVIDENCE.

 

Character is defined in BLDict as personality traits… a person’s moral standing in a community based on reputation or opinion. It is what he is in fact- Plato Films V Speidel[1]. Nwadialo sees it as general reputation as opposed to evidence of particular acts. Section 77 EA 2011 sees it as “reputation as distinguished from disposition… evidence of general reputation and not of particular acts”. Same noted in R V Rowton, R V Redgrave.

Character may be used buttress or cast doubt on credibility-Emoga V State[2], Dogo V State[3] R V Aziz[4]. See Section 223 EA which allows you to discredit a person[5].

  1. Character Evidence in CIVIL CASES:

:: Section 78 evidence of character is inadmissible except in so far as such character appears from facts otherwise relevant. I.e. Character becomes relevant where it is in issue. In civil proceedings, character is also Relevant in the following situations.

  1. Calculation of Damages: Section 79; … the fact that the character of any person is such as to affect the amount of damages which he ought to receive may be given in evidence.-Scott V Simpson court noted that bad character of spouse may reduce damages awarded in an action for Adultery and seduction. Also Butterworth V Butterworth[6]. Verry V Watkins[7].
  2. Breach of Promise to marry: The character of the parties would be accessed. If the fiancé is a runs girl, the court may hold that the man was right in refusing to marry her. Bad character was used in Jones V Jones[8].
  3. Reckless Driving/Negligence: it can be shown that the defendant has been convicted of dangerous driving before.
  4. Defamation: by Section 80 the defendant can give evidence of the plaintiff’s character provided he obtains the leave of the judge and had notified the plaintiff (7 days earlier) that he intends to give such evidence. This exception is couched in the defence of justification which was accepted in Goody V Odhams Press Ltd and Joseph Din V African Newspapers Ltd[9].

Character Evidence in CRIMINAL CASES:

  1. good character: Section 81; In criminal proceedings, evidence of the fact that a defendant is of GOOD CHARACTER admissible-Haruna V Police[10]. Such evidence of good character may be given by the accused, his witnesses, (extracted from) the prosecution witness…

Such evidence of good character can be rebutted by the prosecution especially where such rebutting evidence is clear and compelling. E.g. Camera catches a pastor stealing from a shop[11]. See also R V Vye, R V Aziz, R V Cain.

  1. Bad character: Section 82 (1) generally, evidence of the fact that a defendant is of bad character is inadmissible[12] in criminal proceeding. EXCEPT: (a) when the bad character of the defendant is a fact in issue[13]; or (b) when the defendant has given evidence of his good character[14].

Examples of when bad character is a fact in issue can be found in Section 249 and 250 CCode (concerning rogues, vagabonds and prostitution). See also Section 405(2) of the PCode which requires (in a charge for being an incorrigible vagabond) the prosecution to show that the accused had previously been convicted for being a vagabond. See also The doctrine of recent possession contained in Section 427 of the CCode Section 167 EA which requires that in an offence for receiving stolen property, the prosecution should show that within 12 months, a previously stolen property has been found in the accused’s possession… or within 5 years preceding the charge, he has been convicted for an offence involving fraud and dishonesty.

::The third exception Section 82 (4): Whenever evidence of bad character is admissible, evidence of a previous conviction is also admissible. Note however (5) which provides that; the court shall only admit evidence of previous convictions which are related in substance to the offence charged.

These should be read together with Section 180(G)[15] which immunises the accused against incriminating questions tending to show his commission of other offences[16]. It is necessary to quote Section 180G.

Section 180(G): a person charged and called as a witness in pursuance of this Section shall not be asked, and if asked, shall not be required to answer, any question tending to show[17] that he has committed or been convicted[18] of or been charged with any offence other than that with which he is then charged, or is of bad character unless

(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is then charged[19], OR

(ii) he has personally or by his legal practitioner asked questions of the witnesses for the prosecution with a view to establish his own good character or has given evidence of his good character[20], or the nature or conduct of the defence is such as to involve imputations on the prosecutor or the witnesses for the prosecution, The imputation on the prosecution should be strong –R V Rouse The court has found an imputation on the prosecution in cases where; -the accused alleged that prosecutor was a drunk[21], an immoral person[22], a liar of high magnitude whose brother would not even speak to him[23], that the evidence was concocted and filled with lies[24]OR

(iii) He has given evidence against any other person charged with the same offenceR V Lovett: He may do so personally, through his legal practitioner, witness, prosecution witness and so on. This makes him loose his protection and opens him to cross examination-R V Mclead. In R V Varley, one defendant said that he took part in the robbery under duress from the first accused, the first accused denied. Held that he can be cross-examined. Motive is irrelevant-R V Stannard.

 

[1] 1961 1 All ER 878

[2] 1997 7 SCNJ 518 where the court noted that, you can delve into a person’s past and draw up as much dirt as you can find there so as to discredit him.

[3] 2001 SCNJ 315 at 375.

[4] 1995 2 CAR 478.

[5] See also; In Olaniyan V Adeniyi where the court noted that cross-examination is a potent tool for perforating falsehood.

[6] 1920 p 126 at 145.

[7] 1836 7 c and p 308.

[8] 1868 18 LT 243

[9] (1990) 3 NWLR pt 139 392. The appellant applied to the Federal Electoral Commission to contest election into the constituent Assembly and was disqualified by the commission. He thereafter held a News Conference where he claimed and stated that he had served the Army meritoriously and with an unblemished record before he resigned voluntarily. The Nigerian Army confirmed the inaccuracy of the statement, held a News Conference where the Appellant’s claims were rebutted and the respondent published the statements of the Army and were sued by the Appellant for defamation. The respondents admitted the publication and averred that the words complained of were fair and accurate report of information of the public by the Nigerian Army. The court held Quoting Mcpherson V Daniel “for the law will not permit a man to recover damages in respect of an injury to a character which he does not… possess.” (Culled from Law Pavillon). See also Scott V Daily Times of Nigeria 1990 1 NWLR pt 124. Asheik V MT Nig Ltd 2010 15 NWLR pt 1215 114.

[10] 1967 NMLR 145. In Haruna V Police; accused was charged with aiding and abetting the robbing of a bank. His bank manager testified of his financial soundness and troubleless behaviour.

[11] As Prof Noakes notes that this episcopal character would appear unmerited in such situation.

[12] Chukwueke V State.

[13] The fact in issue is discernible from the pleading in civil proceedings or elements of the offence in criminal. Section 258 Defines: “fact in issue” includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows

[14] E.g. where the accused claims he has been earning monies lawfully and honestly-R V Powell 1986 1 All ER 193. R V Samuel 1956 40 Cr APPR p 8. Also where the accused claims to be religious-R V Ferguson 1909 2 CR 250… etc. in all these cases, the prosecution can cross-examine him or call evidence in rebuttal while in witness box but where he remains in the dock he cannot be cross examined.

[15] Which is in pari material with Section 1(3) English Criminal Evidence Act 1898.

[16] R V Roberts 1936 1 All ER 23. R V Hawden 1902 1 KB 882.

[17] Tending to show has been interpreted to mean revealing for the first time in Jones V DPP 1962 AC. The accused said: “I am innocent. I know that the only reason you are picking on me is because I have been involved in rape before…” court held that he can be questions further on his previous conviction.

[18]It is Conviction rather than acquittal or suspicion-Stirland V DPP 1944 AC 315, Maxwell V DPP 1935 AC 309. R V Cokar (1960) 2 QB 207.

[19] In Mohammed V Olawunmi the court noted that conviction here means as a finding of guilt coupled with a sentence.

[20] Because by doing so makes his character an issue upon which the prosecution can inquire into-Sebastine Tar Hon Law of Evidence in Nigeria Vol II page 1331. “If a defendant denies the offence, he may be cross-examined to refute the denial”-Maxwell V DPP.

[21] R V Holmes

[22] R V Jones 1909 26 TLR 59.

[23] R V Rappolt 1911 21 KB 464.

[24] R V Clark 1955 2 QB 469. See also, R V Lovett ; R V Wright 1900 5 Cr APPR 131

Isochukwu

Quite eccentric really

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