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   1 NATIONAL OPEN UNIVERSITY OF NIGERIA UYO STUDY CENTRE REVISED NOTES Programme: Law (Degree) Course Title: Law of Evidence I Course Code: LAW 445 Course Facilitator: Onyekachi Wisdom Duru Esq. *   1.0.   DEFINITION AND SOURCES OF LAW OF EVIDENCE 1.1.   Definitions of the Law of Evidence The Law of Evidence is concerned principally with what and how facts or materials are admissible in order to prove something that is in dispute. The Law of Evidence relates to the proof of facts before the court and this involves; (a)  who may prove a fact; (b)  how facts may be  proved, and (c)  what facts may not be proved in a court of law. According to Professor Stephen the Law of Evidence is “that part of the Law of Procedure which, with a view to ascertaining individual rights and liabilities in particular cases, decides: (1)  what facts may, and what may not  be proved in such cases; (2)  what sort of evidence must be given of a fact, which may be proved; and (3)  by whom and in what manner the evidence must be produced by which any fact is to be  proved. Thus, Evidence is the foundation of proof. Other definitions of the Law of Evidence include; (a)  According to Taylor   evidence is “all legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact; the truth o f which is submitted to judicial investigation”; (b)  according to McKelvey , Evidence is any matter of fact from which an inference may be drawn as to another matter of fact; the former fact is called the evidential fact; the latter, the ultimate, main or principal; (c)  according to Nokes ; Evidence means “Judicial evidence consisting of (1)  facts which are legally admissible, and (2)  The legal means of attempting to prove such facts; (d)  according to Philpson,  evidence means the testimony, whether oral , documentary  or real , which may be legally received in order to prove or disprove some facts is dispute; (e)  according to Cross , evidence is the testimony, hearsay, documents, things, and facts, which a court will accept as evidence of the facts in issue in a given case; and (f)  according to Best , evidence is “any matter of fact, the effect, tendency or design of which is, to produce in the mind, a persuasion, affirmative or disaffirmative, of the existence, of some other matter of facts.”  From the foregoing, it is clear that McKelvey’s   definition is the reverse of Taylor’s definition. McKelvey  excludes methods of proof; He admits only the actual facts proved. Also, Phipson’s  definition is restricted to oral, documentary and real evidence. What about “presumption”. A “presumption” is a conclusion which may or must be drawn until the contrary is *   Contact:  Email: ; Tel.: +234-8037707496; +234-8022148248 ).     2  proved. Presumption is part of evidence in law and in fact as we shall see later. Lastly, In Taylor’s  definition, Evidence covers: (a)  all the classes of evidence  –   oral, documentary or real evidence, (b)  facts proved, and (c) facts disproved. His reference to “fact which are the subject matter of judicial investigations” answers the description of “relevancy”. Accordingly, his is the  best definition. This is because, as Professor Adesanya  has explained, evidence is a means to an end, the end-  product being “proof” or “disproof”.  Take Notice that in both civil and criminal trials in the Court, the Law of Evidence directs how a trial may be conducted and the issues usually involve: a.   Calling witnesses, b.   Which witness or witnesses to call, c.   Which questions may be asked, d.   Which questions may not be asked and if asked may not be answered, e.   Statements of person who are not called, which may or may not be excluded, f.   Exhibits: documents or other tangible things, which may or may not be tendered, g.   Which fact or facts require or does not require proof by proving some other facts and how to prove it, h.   Inference that may be legitimate from given fact(s) and situation(s), i.   What facts may not be prov ed e.g. state secrets, accused’s bad character, facts forbidden by exclusionary rules of evidence, and  j.   What evidence is relevant. 1.2.   Judicial Evidence  Judicial evidence, according to Nokes , consists of: (a)  facts which are legally admissible, and (b)  the legal means whereby such facts may be proved. The facts that are legally admissible include; (a)  facts in issue, (b)  hearsay, except where it is forbidden or excluded, (c)  opinion of experts, (d)  evidence of character, except where it is excluded or forbidden; and (e)  privilege where it is applicable. On the other hand, the legal means by which facts may be proved include; (a)  witness(es), that is to say, oral evidence, (b)  oaths or affirmation, (c)  documents, (d)  formal admissions or confession; and, (e)  corroboration. Additionally, there are other special means of  proving facts. These are; (a)  Judicial Notice and (b)  Presumption of facts 1.3.   The Courts that apply the Law of Evidence  This segment tries to answer the question whether the Evidence Act applies in all the courts? For example should the customary courts or the Area or native courts including District Courts be bound to comply with the Evidence Act in the proceedings before them? Similarly does the Evidence Act bind the Court Martial or the Police Orderly Room Proceedings? By section 258 of the Evidence Act 2011, " court  " where the Evidence Act applies includes all judges and   3 magistrates and, except arbitrators, all persons legally authorized to take evidence. This means that the Evidence Act is applicable in all superior courts presided by a judge and the Magistrate’s Courts. In other words, the Evidence Act applies to all judicial proceedings in or before any court established in the Federal Republic of Nigeria but it shall not apply to (a)  Proceedings before an arbitrator; or (b)  Field General Court Martial. The foregoing analysis may be summarized as follows: (1)  the Evidence Act applies to all  judicial proceedings in or before any court established by Constitution of the Federal Republic of  Nigeria. (2)  In every other case, judicial proceeding must be strictly guided in accordance with the Evidence Act or the statute or law establishing the Court and Procedural rules. For examples; Rules as to burden of proof and standard of proof are mandatory in all judicial proceedings, where the Evidence Act applies. 2.0.   CLASSIFICATION, HISTORY AND SOURCES OF LAW OF EVIDENCE I   2.1   Classification of the Law of Evidence in Law Legal writers have classified law into: (a)  Substantive and (b) Procedural law for the  purpose of legal proceedings.  Substantive Law  is a generic term, which covers such areas of law as tort, contract; crime etc. It is the law that defines legal rights, duties and liabilities. Examples are: The Criminal Code, and The Penal code. Procedural   Law also called Adjectival   Law  is the law which prescribes the process by which substantive law is lifted from the statute book and applied in practice. It regulates the prosecution of offenders or civil litigation and how the facts upon which rights, duties, liabilities may be founded are established in the courts. Examples are: Criminal Procedure Code, Criminal Procedure Act and Evidence Act. Therefore, Evidence is a  branch of procedural law. 2.2. Sources of the Law Of Evidence Law of Evidence is a type of the Public Law, like the Criminal Law, Constitutional Law, Administrative Law and Revenue Law. The Law of Evidence is unique in that it applies to all  branches of law. Generally, you can say that the Law of Evidence derives from the following: (a)   Informal (Traditional) or non-formal source . The rules from this source may be legal but they are not authoritative. There are persuasive only. (b)   Formal source of law . A formal source gives validity to the law. It is also in the nature of the ill and common consciousness of the people of Nigeria; (c)   Material Source . This may be (i)  Historical: Writings of distinguished learned writers. They are of persuasive authority or (ii)  Legal; the laws which the law  per se recognizes. Examples are statutes, judicial precedents, etc; (d) Authoritative and binding sources . This refers to the srcin of legal rules and principles, namely: The legislature, which through legislations, brings into existence, received and local statutes. The courts which through authoritative judicial decisions, create judicial  precedents, example common law, doctrines of Equity and local precedents, as well as customs.   4 2.3. Historical Development of Law of Evidence The Law of Evidence in Nigeria srcinates as well as derives its authority from the following: (1)  local laws and custom (2)  Received English Law, to wit; a.  the English Common Law b.  the doctrines of Equity, and c.  The statutes of general application in force in England as at January 1, 1900 (3) Local legislations and the judicial interpretation based on them (4)  The Law Reports (5)  Text Books and Monographs on Nigerian Law and (6)  Judicial Precedents. 2.4. Theories of Sources of Law The theories of Sources of Law range from the Consensus, to the Conflict and middle of the Road theories. (a)   Consensus theory This theory argues that Laws are a product of unanimous agreement  –    a consensus ad idem  –   of the society. This idea functions as an integrated structure, which the members of the  pertinent society mutually and voluntarily agree to and accept as their norms, rules, and values, which should be uniformly respected. (b)   Conflict Theory The conflict theory is in dissonance with the Consensus theories. It denies that the society is ever consensual, but conflict and competitive. Accordingly, conflict theory argues that laws are a dictate of the wealthy and powerful elite, and they make laws only to perpetuate their  positions and class interests. (c)   Middle-of-the Road Course Theory The proponents of the Middle Course theory argue that the laws are definitions by the  privileged group, of the dominant values, notions and morals. The better view is that the Laws are the handiwork of the legislators who are your elected representatives. They exercise the political and legal powers of the state but not necessarily to protect their  positions, statues or class interests.  None of the theories is completely valid or wholly invalid. Each has its merit and deficiencies. The same conclusion is true of any legal system in any part of the world. 2.5. Origin of the Law of Evidence 2.5.1. Pre-Colonial Era The pre-colonial rules of evidence, applied in pre-colonial settlements, Empires and Kingdoms which now constitute Nigeria they were: 1.   The Moslem Law of the Maliki School. This law applied in Islamic areas and Courts in those areas. It is a written law. 2.   The Customary Law.   5 This applied in non-Islamic areas and courts. It is either wholly unwritten or part written. 2.5.2.   Colonial Law of Evidence By Ordinance, No 3, of 1863 , Her Majesty, the Queen of England, introduced into the Colony of Lagos, the following Laws: 1. Common Law of England 2. Doctrines of Equity 3. Statutes of General Application 4. Laws specifically enacted for the Colony of Lagos. The English  –  type courts, were set up to enforce and administer these laws. Examples of such courts are: 1.   The Consular Court and 2.   The Equity Court. 3.   The Supreme Court The Supreme Court metamorphosed into the Court of Civil and Criminal Justice; it resurrected as the Supreme Court of Lagos colony. The Supreme Court Proclamation, 1900 also created a Supreme Court for the Protectorate of Northern Nigeria. The Native Court Proclamation 1900-1901 established the statutory Native Courts. Prior to 1900, the Received Law and native laws and customs co-existed, and were sources of Nigerian law including the Law of Evidence. The Ordinance No. 3, of 1863 as modified by the Supreme Court Ordinance, No. 4, 1876, applied the Received Laws, the Statutes of General Application in force as at the 24 July, 1874 (later varied to 1st January 1900) subject to local circumstances. They permitted local laws and customs, which were neither repugnant to natural justice, equity and good conscience nor incompatible with local statutes. In the North, the Native Court Proclamation, 1900 similarly permitted customary laws that were not repugnant to natural justice and humanity. After 1900 and more particularly after the amalgamation of the colony and Protectorate of Southern Nigeria and the Protectorate of the Northern Nigeria (1914), the local laws and customs declined and the received English law and the established English Courts prevailed. The Native courts Proclamation, 1900 as amended by the Native Courts Proclamation No. 12, 1901 established the statutory Native Courts with exclusive civil and riminal jurisdiction. The traditional authority of indigenous courts as well as the customary laws and customs of the local communities disappeared, or were swept under ground. The following Ordinance further entrenched the Common Law of England in the Nigerian legal system: 1.   The Protectorate Courts ordinance, 1933, Section 12. 2.   The Provincial Court Ordinance 1914 as amended, section 10. 3.   The Magistrates Court Ordinance, 1943, Section 30.
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