CIVIL LITIGATION: CIVIL TRAIL UNDER THE LAW OF EVIDENCE IN NIGERIA

N.B: A good counsel must ensure that his knowledge of Law of evidence is comprehensive; this will help him during a civil trial. The importance of evidence in civil trial will help a counsel to know;

N.B: Kindly refer to your University Evidence Notes, this is a mere excerpts from class and Nigeria Law School Electronic Handbook and some emphasis made in class for the purpose of BAR PART 2

Facts that needs to be proved during trial; (SECTION 1 EVIDENCE ACT)

a)      Fact in issue

b)      Facts Relevant to the fact in issue.

Furthermore, to know facts though relevant but need not to be proved;

a)      Fact that appears to be too remote

b)      Fact which he is dis-entitled to prove by any provision of the law;

i)                    Hearsay

ii)                  Similar Fact

iii)                Character Evidence

iv)                Opinion Evidence……..

IN OLUFOSOYE V OLORUNFEMI: An admitted fact is not in issue. It is only when facts are in disputes that they are said to be in issue. In civil cases, admitted facts are usually contained in the pleadings.

The formula is….FACTS IN ISSUE = MAIN FACTS IN ISSUE+ COLLATERAL FACTS IN ISSUE.

CLASSIFICATION OF EVIDENCE

1.      Direct

2.      Hearsay

3.      Circumstantial

4.      Oral

5.      Documentary

6.      Real

THE HEARSAY RULE AND EXCEPTIONS

STATUTES: SECTION 37 & 38 EVIDENCE ACT.

Hearsay evidence is repetition in court by a witness of what some other person had told him. In the legal sense, Hearsay is all evidence which does derive its value solely from the credit given to the witness himself but rests in part; on the veracity and competence of some other person.

However, in SUBRAMANIAN V PUBLIC PERSECUTOR: The court held that evidence of a statement made to witness by a person who was not himself called as witness was not hearsay evidence and was admissible when it was proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

N.B: This rule also extends to documents; the exception is entrenched in SECTION 83 E.A.

Generally the exception to HEARSAY RULE ARE;

1.      Admission

2.      Confessions

3.      Dying Declaration

4.      Affidavit Evidence

5.      Admissibility of documents under SECTION 83

6.      RES GESTAE

7.      Opinion of Experts expressed in treatise

8.      Statement made by person who cannot be called as witness.

DOCUMENTARY EVIDENCE

RULE: The documents should speak for itself. In a civil trial, the admissibility of documentary evidence is governed by these conditions;

a)      Is the documents pleaded?

b)      Is it relevant to the enquiry being tried by the court

c)      Is it admissible in law?

We all know they types of documents;

a)      Public Documents. See SECTION 102 (a) & (b)

b)      Private Documents. SECTION 103

A good counsel must know how the distinction between Proof of Execution and Proof of Content of a document.

PROOF OF EXECUTION: This entails issues related with;

a)      Who is the author?

b)      Is the document authentic?.....see Generally, SECTION 93 -101 EA

PROOF OF CONTENT: As a general rule, the contents of a document may be proved either by PRIMARY OR SECONDARY EVIDENCE.

PRIMARY EVIDENCE: Means the document itself produced for the inspection of the court. OKAFOR V OKAFOR. SECTION 86 EA.

SECONDARY EVIDENCE: This is sometimes tricky, but there is always a need for proper foundation for the admissibility of a Secondary Evidence, this is provided under SECTION 89 EA.

IN UDENKWO & ORS V NWOSU & ORS: The court held that;

            ‘’…to elevate the status of a piece of Secondary Evidence to the level where it would be admissible by court, without any iota of compunctions requires adequate foundation to be laid for its admissibility’’

                                    V.I.P PUBLIC DOCUMENT

N.B: A Certified True Copy is the only form of Secondary evidence admissible for a public document (definition of Public document is in Section 102). The following documents are public documents;

1)      Documents forming the official acts or records of the official acts of the sovereign authority - Section 102(a)i. when the documents is an official act or record of the official acts of the President of Nigeria, that is a public document. For instance, a letter written by President Goodluck Jonathan congratulating the Super Eagles on their victory in the African Nations Cup is a public document.

2)       Documents forming the official acts or records of the official acts of official bodies and tribunals are public documents – section 102(a)ii. For instance, the letter of admission given by the Council of Legal Education is a public document because it forms part of the acts of Council of Legal Education being official bodies.

3)      Documents forming the official acts or records of the official acts of public officers, legislature, judicial and executive whether of Nigeria or elsewhere are public documents – section 102(a)iii. Examples include:

a)      Marriage certificate issued by the Registrar of Marriage being a public officer is a public document.

b)      Certificate of incorporation issued by the Corporate Affairs Commission

c)      Records of legislative proceeding

d)      Statutes

e)      Judgment of the English court and courts of other countries.

f)       Land certificate – certificate of titles issued by Registrar of Land Registry.

g)      Certificate of occupancy issued by Governor.

4)      Public records kept in Nigeria of private documents – section 102(b)

a)      Memorandum and Articles of Association of a company upon incorporation, particulars of director, annual returns e.t.c

b)      Deed of assignment, Deed of lease, Deed of Mortgage when registered under the Land Instrument Registration Law.

c)      Newspaper – there are two laws on it. The Newspaper Act and National Library Act. Three copies one is to be kept at the library at University of Ibadan, another at National Library.

 N.B: For a document to be Certified True Copy, it must meet the following conditions;

a)      That the legal fees have been paid.

b)      That it is a certified copy of the original document

c)      That the certificate has been subscribed and dated showing the official title of the officer and

d)      Sealed in cases in which the official is entitled by law to use seal or stamped with official stamp. SEE SECTION 104

ANALYSIS OF SECTION 83 EVIDENCE ACT

By virtue of section 37, hearsay evidence which is generally excluded includes statement contained or recorded in a book, document. Thus oral testimony of another reduced into writing is hearsay evidence and not admissible. However, section 83 creates an exception to documentary hearsay. Before the statement reduced into document can be admitted, the following must be fulfilled

1.      The maker of the statement had;

a)       personal knowledge of the matters dealt with by the statement; or

b)      Where the documents forms part of record made in the performance of a duty to record information supplied to him by a person who have personal knowledge of those matters; and

2.      If the maker of the statement is called as a witness in the proceeding except the maker is dead, unfit by reason of his bodily or mental condition to attend as a witness or if he is outside Nigeria and it is not reasonably practicable to secure his attendance – section 83(1) & (2).

However, Subsection 3 which makes inadmissible statement made by a person interested at a time when proceedings were pending or anticipated as such statement could de doctored to align with his own facts of the case. The ‘’person interested’’ means any person likely to be affected by the outcome of a proceeding(section 258)

Also subsection 4 which states that a document can only be said to have been made by a person who wrote it (produced it with his own hands or signed or initialed by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible.

While Subsection 5, gives the judge a discretionary power in deciding whether or not a statement is admissible as evidence from the above subsections. He may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and may in deciding whether or not a person is fit to attend as a witness, act on certificate purporting to be the certificate of a registered medical practitioner.

       

                 ADMISSIBILITY OF ELECTRONIC EVIDENCE

CASE: KUBOR V DICKSON: The Appellant challenged the election and return of the first respondent as the Governor of Bayelsa State in the February 11 2012 governorship election. The documents tendered by the appellant included a COMPUTER PRINTOUT of the ONLINE VERSION of THE PUNCH NEWSPAPER and another document from the WEBSITE of the INEC. However, the appellant did not satisfy the conditions provided in SECTION 84(2) EVIDENCE ACT with respect to the admissibility of electronic evidence.

The matter went to appeal. The respondent claimed that since the exhibits were public documents, only certified copies thereof were admissible in evidence; the documents were inadmissible as evidence as they had been tendered from the bar without satisfying the conditions set out in SECTION 84(2) EVIDENCE ACT.

HELD: The Supreme Court; There is no evidence on record to show that the appellant in tendering the exhibits satisfied any of the above conditions. In fact they did not as the documents were tendered and admitted from the bar, no witness testified before tendering the documents so there was no opportunity to lay the necessary foundations for their admission as e-documents under SECTION 84 of the EVIDENCE ACT, 2011. No wonder therefore that the lower court held that;

            ‘’a party that seeks to tender in evidence computer generated documents needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under SECTION 84(2) of the EVIDENCE ACT’’

I agree entirely with the above conclusion. Since the appellant never fulfilled the pre-conditions laid down by the law. The EXHIBITS were inadmissible as computer generated evidence.

CONDITIONS FOR ADMISSIBILITY OF COMPUTER-GENERATED EVIDENCE (SECTION 84(2))

1.      The Statement sought to be tendered was produced by the computer during a period when it was in regular use

2.      During that period of regular use, information of the kind contained in the document or statement was supplied to the computer

3.      The computer was operating properly during the period of regular use

4.      The information contained in the statement was supplied to the computer in the ordinary course of its normal use

FURTHERMORE, Section 84(4) requires that the party which seeks to tender a computer-generated statements or documents shall file a certificate;

1.      Identifying the documents or statements

2.      Describing the manner of its production

3.      Stating the specification of the device used in the production of the document and

4.      Signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities.

                            COMPETENCE AND COMPELLABILITY OF A WITNESS

COMPETENCE

RULE: All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those question by reason of: tender years and extreme old age, disease whether of body or mind and any other cause of the same kind. section 175(1) EA.

 A person of unsound mind is competent to testify unless he is prevented by his mental infirmity from understanding the questions put to him and giving rational answers to them – section 175(2).

A dumb person is competent to testify either in writing or by signs but such writing must be written and the signs made in open court – section 176(1). Importantly, the evidence so given shall be deemed to be oral evidence – section 176(2).

For the evidence of a person of tender age, section 209(1) EA provides

‘’that if a person has not attain the age of 14 years and is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation if in the opinion of the court if he is possessed of sufficient intelligence to justify the reception if his evidence; and understands the duty of speaking the truth’’

However, a child of 14 years and above can give sworn evidence in all cases – section 209(2) EA. There is no provision for corroboration of unsound evidence of a child. Generally, there is need for corroboration when the Evidence Act provides for it. In civil cases, only in breach of promise to marry.

                                 COMPELLABILITY

The general rule is that every competent witness is a compellable witness except where there are laws excluding certain competent persons from being compelled. These persons are:

1.      The President, Vice- president, Governor of a state and Deputy-Governor of that state. Section 308 CFRN 1999 provides for this immunity. The immunity protects them in their personal capacity and not in their official capacity. Thus the office of the President and Governor can be sued. The immunity avails them for the period they occupy the office. For the commencement of action, time will not run until the person leaves office.

2.      Legislative immunity – only the premises of the legislature and not the persons are protected. The subpoena cannot be served on a senator in the legislative house.

3.      Diplomats – diplomats and ambassador have diplomatic immunity under the Diplomatic Immunity and Privileges Act. Note that their staff members who are Nigerians do not enjoy the immunity.

After determining that a witness is both competent and compellable, a witness which had refused to come can be compelled by:

Subpoena used in the High Court; or

Witness summons used in the Magistrate Court

There are two types of subpoena:

Subpoena ad testificandum – Form 27 LAG

Subpoena duces tecum – Form 29 LAG

MEANING: Subpoena as testificandum is used to compel a witness to attend court and testify in court WHILE subpoena ducestecum is used to compel a witness to attend court with certain documents to give evidence.

PRIVILEGE COMMUNICATION

Certain communications are regarded as privilege in court of which evidence of it is generally not admissible in court except as otherwise provided by the Evidence Act.

1.      Communication between husband and wife during the subsistence of that marriage is privilege – section 187. The following are the exceptions:

a)      Where the person that made it or that person’s representative in interest consents.

b)      Proceedings between the husband and wife

2.      A Justice, Judge, Grand Kadi or President of Customary Court of Appeal or Magistrate court before whom proceeding is being held should not be compelled to answer any questions as to his own conduct in court. However, such can be compelled upon the special order of the High Court of the state, FCT, Abuja or Federal High Court.

3.      Communication as to state affairs and official communication – section 190 and 191. For evidence as to affairs of states, when such is not published – in custody of state, no one is permitted to publish such. However, upon an order of the court, such can be given to the JUDGE ALONE IN CHAMBERS – section 190. Ordinarily, a public officer shall not be compelled to disclose communications made to them in official capacity when he considers that the public interest would suffer by the disclosure. However, upon an order of court, the public officer concerned shall disclose to the judge alone in chambers the substance of communication in question and if the judge is satisfied that the communication should be received in evidence, this shall be done in private in accordance with section 36(4) CFRN. The above lay to rest the controversy as to who has the final say – THE COURT.

4.      Professional communication between client and legal practitioner – section 192. A legal practitioner is not expected to disclose communication between him and his client. However, there are circumstances in which such communication can be revealed:

a)      With the express consent of the client

b)      Communication made in furtherance of any illegal purpose.

c)      Communication showing intention to commit a crime.

BURDEN OF PROOF

General/legal burden of proof: section 131 & 132 Evidence Act. The general burden of proof is determined by the state of pleadings. The claimant/plaintiff has the responsibility of proving the entire case. Section 132 Evidence Act provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Evidential burden: This is the duty of proving particular facts. The pleadings should be looked at in determining evidential burden. There are certain elements/circumstances that shift the burden of proof from one party to the other.

                             TO BE CONTINUED!!!!!!!

READ HARD

PRAY HARD

REST HARD

EAT HARD.............THANKS FOR STOPPING BY, READ AND SHARE