Chris Ozo Agbata’s Evidence Note, chrisozcaagbata@gmail.

com

LAW OF EVIDENCE 24/01/2020

COURSE OUTLINE
1. Meaning, Nature and Classification of Evidence.
2. Relevancy and Admissibility. Sec 4 Evidence Act (In England it is called doctrine of res
gestae)
3. Other Aspects of Relevant Facts. Secs 5 – 13 Evidence Act (excluding Sec 12)
4. Similar Facts Evidence. Sec 12 Evidence Act.
5. Illegally Obtained Evidence.
6. Confession.
7. Admissions
• Formal and
• Informal
8. Facts that Need not be Proved
• Presumptions
• Judicial Notice (You will be examined on both)
9. Estoppel
a. Record Estoppel and
b. Non Record Estoppel
10. Burden and standard of proof.

TEXTS
Evidence Act 2011
Aguda: Law of Evidence
ST Hons: Law of Evidence in Nigeria
Afe Babalola: Practice and Procedure of Evidence
Fidelis Nwadialo: Modern Law of Evidence

NB: If you are buying old texts, note the changes in the new EA2011 eg res gestae was s7 but now
s4 in the EA2011.

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MEANING, NATURE AND CLASSIFICATION OF EVIDENCE

Almost the entire part of the Nigeria Legal System is inherited from the British and evidence is
not left out e.g. the adversarial system. It is on the parties to prove a case before the court, based
on evidence, it is then the duty of the court (judge) to determine the admissibility and to decide the
case based on them based on procedural and substantive law.
It must be noted that evidence is procedural and doesn’t belong to the substantive law and that’s
why it is described as a Cinderella in law. No matter how good a case is, there must be evidence
to support and prove it. Evidence is needed to prove virtually every aspect of substantive law e.g.
land, criminal matters etc. This is why evidence is procedural, a matter in court cannot be
predicated on evidence but it comes up as a procedure to prove and establish substantive laws.
Evidence cannot be the main subject of a case, instead its used as a procedure to prove the subject
matter which is substantive law. It goes hand in hand with the substantive laws.
It is also part of the adversary system wherein the adversary parties face each other with facts and
evidence. This is unlike the civil law systems wherein the judge plays active part in coming up
with evidence to establish a case.
Summary:
1. It’s got from the British system like other aspects of Nigerian laws
2. It’s also adversarial in nature and forms an important part of it
3. It’s procedural in nature but used to prove substantive law
4. It cannot be the subject matter of a case, it is only used to prove it

DEFINITION
There is no universally accepted definition of evidence. All has its own deficiency based on the
view of the jurist or scholar.
Cross: “Evidence is defined as the testimony, hearsay, documents which a court of law will accept
as evidence or a fact in issue.” This is restricted to what the court will accept and not what the
court rejects but in practice, this is not so as a rejected evidence is also an evidence. For instance,
a court may reject a document as inadmissible but won’t give it back, instead it will file it as part
of record of proceedings. This is because, if a matter is taking up on appeal, what was rejected at
TC may be accepted by the AC. This definition is narrow in scope, in the sense that, it doesn’t
include facts offered in disprove/prove of facts in issue. It is only evidence or facts not disproved
that the court will accept.
Prof Noakes: “Evidence consists of facts which are legally admissible and the legal means of
proving such facts.” The deficiency is that it is confined to legally admissible evidence whereas,
illegally obtained evidence is admissible. For example, under Administration of Criminal
Justice Act; before police searches a premises, they have to present a search warrant and subject
themselves to be searched before they start. However, if these procedures aren’t followed and the
defendant raises objection of invasion of privacy, while that would be looked into and adequately

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compensated the relevant facts and evidence will still be used by the court at its discretion. Another
example is the BBC Africa that got video tapes of lecturers at Unilag.
Phipson: “the testimony of a witness whether oral or documentary and things which may be legally
received in order to prove or disprove some facts in issue.” This is narrow as evidence goes beyond
oral or documentary e.g. there are computer generated evidence, tape recorded evidence etc.
Aguda: “Evidence is the means by which facts are proved excluding inferences and arguments.”
This cannot be correct as there are instances where inferences are parts of evidence. For example,
presumption in the offence of receiving a stolen property, when a person is found in possession of
a property soon after the theft, the court will infer that the person is either the thief or receiver of
a stolen property. Thus, inferences do constitute evidence. The court may also infer the intention
of a person as a consequence of his conduct e.g. one stabbing another and claiming that he didn’t
know that death could result from the stabbing upon being charged for murder. The court will infer
his intentions from his actions in these circumstances.
There is no uniformity when it comes to the definition of evidence.
Summary:
Cross
• Definition: testimonies, hearsay, documents accepted by court as evidence or facts in issue
• Main Criticism: some evidence aren’t admitted or accepted by the court but are evidence
anyway e.g. inadmissible evidence which are still part of record of proceedings and may
be accepted on appeal.
• Counter Criticism: nil
Prof Noakes
• Definition: facts which are legally admissible and legal ways of proving them
• Main Criticism: it is confined to legally admissible evidence whereas, illegally obtained
evidence is admissible.
• Counter Criticism: He’s referring to the legality of admissibility and not obtainment i.e.
an illegally obtained evidence may still be legally admissible because the court admitting
it makes it legal.
Phipson
• Definition: testimony of a witness whether oral or documentary and other things legally
received to prove or disprove facts in issue
• Main Criticism: evidence goes beyond the oral or documentary classification e.g.
electronically generated evidence, tape recorded evidence
• Counter Criticism: the definition of document in s258 “or described upon any substance
by means of letters, figures or marks, or by more than one of these means” definitely
includes electronically generated evidence. Also, “any disc, tape, sound track or other
device in which sounds or other data are recorded” definitely includes tape recordings.

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Besides, he added and other things legally received, thus these other things seem infinite
and can include all these other types of evidence or indeed anything that may be accepted
as an evidence.
Aguda
• Definition: means by which facts are proved excluding inferences and arguments
• Main Criticism: inferences can be evidence e.g. s167(a) on receiving stolen goods, the
court can infer that the receiver immediately the theft is either the thief or received them
knowing them to be stolen unless he can plausibly explain.
• Counter Criticism: nil

SOURCES
The main source of evidential rules in Nigeria is the EA 2011. Some aspects of evidence in any
other statute may be acceptable in court s3EA 2011. These are the two main sources of evidence
in Nigeria e.g. under the EFCC Act and Money Laundering Act, there is the provision for plea
bargain which is not in the EA.
However, if there is any inconsistency between any other evidential rule in any other statute and
the EA, the EA will prevail and that other law will be void to the extent of its inconsistency.
Evidence is a matter within the competence of the NASS as it is in the exclusive legislative list
Second Schedule to the CFRN 1999.

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PROF AMUSA
BRIEF HISTORICAL DEVELOPMENT OF THE LAW OF EVIDENCE IN NIGERIA
The law of evidence was introduced in Nigeria in 1943 but it was in 1945 that it was formally
enacted into law. Basically, the law of evidence of 1945 was premised on The Stephen’s Digest
of the Law of Evidence 12th Edition. The Stephen’s Digest contained known English rules of
evidence which was meant for England but the codification was rejected by the British Parliament
but was then introduced into the various British colonies like India, Kenya, Uganda, Ghana and
Nigeria.
The Stephen’s Digest was an attempt by Stephen to codify the law of evidence in England but was
rejected but instead introduced in the colonies. One can then say that the EA 1945 was the
restatement of English rules of evidence as well as the English judicial decisions as at 1943. No
major reforms were carried out in the EA1945, although various suggestions were made by
scholars, the law reform commission as well as the various court decisions in Nigeria but in 2011,
the new EA was enacted by the NASS which was a radical departure from the EA1945.
Apparently, there’s the necessity to accommodate the recent changes e.g. technology like
computers which weren’t covered in the EA1945. For example, in the old EA there was the
Omnibus Commission which was like if there was a lacuna, the court would be at liberty to go to
other jurisdictions especially England for the purpose of using English rules to interpret the old
EA and that led to lots of controversies as it led to various conflicting judicial decisions.
However, all these have been harmonized in the new EA which is to the effect that when looking
for sources of evidence, it is either the principal law (EA 2011) is used or evidence in any other
statutes in force in Nigeria. Thus, truncating the ability of the court to travel to England for rules
of evidence to interpret Nigerian matters as provided in s3 EA2011 “nothing in this Act shall
prejudice the admissibility of any evidence that is made admissible by any other legislation validly
in force in Nigeria.” This section subtly repealed the old omnibus commission contained in s5A
EA 1945 which permitted the court to use similar laws of evidence in England where there is a
lacuna in Nigeria.

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CLASSIFICATION OF EVIDENCE
ORAL EVIDENCE: Prof Cross has defined oral evidence is a statement of a witness in court
which is offered as evidence of the truth of that which is asserted. Predominantly, oral evidence is
often in use in various courts in Nigeria and by virtue of s125 EA2011 “All facts, except the
contents of documents, may be proved by oral evidence.” This is why the courts usually insist on
oral evidence which normally includes witnesses testifying. This also includes accounts of the
events at the locus (scene of incidence or crime) and even the visitation of crime scene by the
court, thus, it is not restricted to what is given in court.
It should be noted that if a person is unable to speak, signs and signals made in an intelligible
manner would also amount to oral evidence as contained in s176EA2011 on Dumb Witnesses
S176(1) “A witness who is unable to speak may give his evidence in any other manner in which
he can make it intelligible, as by writing or by signs: but such writing must be written and the signs
made in open court.”
(2) “Evidence so given shall be deemed to be oral evidence.”
Even where such a person writes, it is not documentary but oral evidence. This is why services of
interpreters are engaged.
Also note that oral evidence may take the form of examination-in-chief, cross examination
or re-examination.
Examination in chief is when a person gives evidence in support of what transpired in a particular
case. Cross examination is when the counsel on the other side asks him/her questions based on
the evidence given in chief which the purpose is to test the veracity, reliability and credibility of
the evidence given in chief. It is also to check the character of the person who has given evidence
in chief. However, the questions must not bring the person to ridicule and must be quite relevant
to the subject matter e.g. asking a person about marital status in a land matter. The purpose of re-
examination is to clarify any unclear things or ambiguities arising from answers given during the
cross examination.
Summary:
1. Prof Cross: statements of witnesses in court in proof of veracity or truthfulness of
assertions. This is narrow as it only covers statements in court but court sometimes also
visit crime scene (locus).
2. S 125: everything except contents of a doc can be proved by oral evidence.
3. S 176 (1): dumb witnesses can use signs and signals to give evidence and subsection two
(2) such signs and signals are to be classified as oral evidence.
4. 3 types: examination-in-chief which is initial presentation of evidence to prove facts,
cross-examination to scrutinize the veracity of the evidence and the presenter, and re-
examination is to clarify unclear issues from answers given during cross-examination.

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DOCUMENTARY EVIDENCE: this has been described as evidence which includes books,
maps, drawings, photographs or any matter expressed or described to form any substance by means
of letters, figures, marks or any other means. It also includes tape recorded evidence, computer
generated evidence and so on. See s258EA "document" includes
(a) books, maps, plans, graphs, drawings, photographs, and also includes any matter expressed or
described upon any substance by means of letters, figures or marks or by more than one of these
means, intended to be used or which may be used for the purpose of recording that matter;
(b) any disc, tape, sound track or other device in which sounds or other data (not being visual
images) are embodied so as to be capable (with or without the aid of some other equipment) of
being reproduced from it, and
(c) any film, negative, tape or other device in which one or more visual images are embodied so
as to be capable (with or without the aid of some other equipment) of being reproduced from it;
and
(d) any device by means of which information is recorded, stored or retrievable including computer
output:”
Note, that document is not restricted to what is written on paper, even when you put on a T-shirt,
an inscription on it suffices, inscriptions on tomb stones, billboards, signposts, tattoos provided
that they are informative. E.g. in the olden days, there was a time that the date of birth of babies
were written on their tummies, those would suffice. The tattoos need not been in letters, they could
be signs or emblems e.g. cultists. Thus, the category of documentary is unlimited, provided it is
informative, it is documentary, it doesn’t matter the surface or language, letter or sign.

DIRECT EVIDENCE: it is evidence of the witness who saw, heard or perceived any facts by any
of his senses. It is only a person who can perceive by any of his senses that can give direct evidence,
so for instance, a dead person can no longer perceive and cannot give such evidence.
See s126: Oral evidence must be direct:
S126: Subject to the provisions of Part Ill, oral evidence shall, in all cases whatever be direct if it
refers to-
(a) a fact which could be seen, it must be the evidence of a witness who says he saw that fact:
(b) to a fact which could be heard, it must be the evidence of a witness who says he heard that
fact:
(c) to a fact which could be perceived by any other sense or in any other manner, it must be the
evidence of a witness who says he perceived that fact by that sense or in that manner;
(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds:

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Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the
grounds on which such opinions are held, may be proved by the production of such treatise if the
author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called
as a witness without an amount of delay or expense which the court regards as unreasonable.

CIRCUMSTANTIAL (INDIRECT) EVIDENCE: More often, the accused is not found

committing the offence, the accused may not have been arrested at the scene of crime and may not
give confessional statement. In such situations, the court may rely on evidence of circumstances
of the case.
So, circumstantial evidence means a number of circumstances which when asserted make a
complete and unbroken chain of evidence. Before the court can rely on circumstantial evidence,
such evidence must be cogent, positive, unequivocal and has an accuracy of mathematics
(mathematical accuracy). It must lead to one conclusion and that is to the guilt of the accused.
Where it leaves a room for doubt, such doubt must be resolved in favour of the accused. So,
circumstantial evidence on the guilt of the accused must be conclusive and convincing before the
court can rely on it.
Thus, indirect or circumstantial evidence arise because most of the times, the criminals aren’t
arrested at the crime scene and they often do whatever it takes to cover their tracks, thus they can
only be detected through this type of evidence as it would be impossible to establish direct
evidence. See Peter Igho v The State 1978 3 SC 37; the last seen principle was applied in this
case.
The appellant was charged with the murder of one Ifoto Oboluke.
The undisputed facts are that the deceased, Ifoto Oboluke, left her house on Sunday 20th August,
1972 for a religious service but never returned home alive. When the mother did not see her return
in the evening she made a report and a search party was organised by the Villagers. Those who
saw her last said she was riding at the back of a bicycle. The corpse of the deceased was later found
that night.
The case of the prosecution in regard to the involvement of the appellant in the matter was based
mainly on the evidence of three witnesses; Phillip Umukuro, Umuko Ogberebrume and
Ayeferherbe Okotie. The last-named person died before the case came up for hearing and it was
the deposition she made before the examining magistrate that was admitted in evidence. Phillip
Umukuro saw the appellant at the burial ceremony at Oviri Village but later in the day he saw the
appellant giving a ride to the deceased on the back of his bicycle. Umuko saw the deceased being
given a ride on the back of a bicycle though he could not identify the man giving the deceased that
ride. Ayeferherbe saw the appellant carrying the deceased on the back of his bicycle.
And so, on the evidence accepted by the learned trial Judge, the deceased was last seen alive with
the appellant. The appellant denied carrying the deceased or even seen her at all.

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The learned trial Judge after a review of the whole evidence before him, found the accused guilty
of murder.
On appeal, it was held by the Supreme Court that:
1. The only irresistible inference from the circumstances presented by the evidence in this case
is that the appellant killed the deceased.
2. The facts which were accepted by the learned trial Judge, amply supported by evidence
before him, called for an explanation and beyond the untrue denials of the appellant none was forth
coming. This constitutes circumstantial evidence, it is proof beyond every reasonable doubt of the
guilt of the appellant.
Appeal dismissed.
Eso, J.S.C.-On 2nd March 1978, when this appeal came up for hearing, and having heard Mr F.O.
Akinrele, learned Counsel for the appellant, we dismissed the appeal and indicated that we would
give our reasons later. We now give our reasons for the course we took.
The appellant was charged with the murder of one Ifoto Oboluke.
The undisputed facts are that the deceased, Ifoto Oboluke, left her house on Sunday 20th August,
1972 for a religious service but never returned home alive. When the mother did not see her return
in the evening she made a report and a search party was organised by the villagers. Those who saw
her last said she was riding at the back of a bicycle. The corpse of the deceased was later found
that night.
The case of the prosecution in regard to the involvement of the appellant in the matter was based
mainly on the evidence of three witnesses; Phillip Umukuro, Umuko Ogberebrume and
Ayeferherbe Okotie. The last-named person died before the case came up for hearing and it was
the deposition she made before the examining magistrate that was admitted in evidence. Phillip
Umukuro saw the appellant at a burial ceremony at Oviri Village but later in the day he saw the
appellant giving a ride to the deceased on the back of his bicycle. Umuko Oberebrume saw the
deceased being given a ride on the back of a bicycle though he could not identify the man giving
the deceased that ride. Ayeferherbe Okotie saw the appellant carrying the deceased on the back of
his bicycle.
And so, on the evidence accepted by the learned trial Judge, the deceased was last seen alive with
the appellant. The appellant denied carrying the deceased on the back of his bicycle which he said
was a lady's bicycle or even seeing her at all.
The learned trial Judge, after a review of the whole evidence before him, found the accused guilty
of murder. He said of the evidence:
"It is true that the whole case against the accused is based on circumstantial evidence but it is my
honest opinion that the circumstances connecting the accused with the deceased are so powerful
that it is irresistible to conclude that it was the accused who knew about the death of the deceased.
In coming to this conclusion, I am perfectly mindful of the fact that there is no onus on the accused

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person to account for the death of the deceased, the onus is on the prosecution to prove beyond all
reasonable doubt that it was the accused who in fact killed the deceased. When a person is charged
with the murder of another person and there being no direct evidence of the killing of the deceased,
recourse may be had to circumstantial evidence and this includes any evidence which tends to
connect that person with the probable cause of death R Vs. Robertson (1913) 9 CR App. R. 189.
If the facts advanced by the prosecution leave only one inference that it is the accused and no other
person is responsible for the death of the deceased the Court may convict on such circumstantial
evidence being the best evidence available in the case. There is no footrule by which any
circumstantial evidence can be measured before a conviction is entered against an accused person
charged with the offence for which the circumstantial evidence is the only one available. Each case
depends on its own facts but the one test which such evidence must satisfy is that it should lead to
the guilt of the accused person and leave no degree of possibility that other persons could have
been responsible for the commission of the offence James Popoola Vs. Commissioner of Police
(1964) N.M.L.R. 1."
The complaint of learned Counsel against the judgment is that the circumstantial evidence adduced
in this case did not point irresistibly to the guilt of the appellant and also the evidence of the 3rd
prosecution witness-Phillip Umukuro, should not have been accepted having regard to the fact that
it took him eleven days before he came out with the information leading to the arrest of the
appellant.
But then, this is not the only evidence relied upon to convict the appellant. Apart from the evidence
of Phillip Umukuor, which has been criticised by the learned Counsel for the appellant, there was
evidence of Ayeferherbe Okotie. She too saw the appellant carrying the deceased was last seen
alive with the appellant. This evidence was accepted by the learned trial Judge. He rejected the
denial of the appellant. The only irresistible inference from the circumstances presented by the
evidence in this case is that the appellant killed the deceased. We can find no other reasonable
inference from the circumstances of the case. The facts which were accepted by the learned trial
Judge, amply supported by evidence before him, called for an explanation, and beyond the untrue
denials of the appellant (as found by the learned Judge) none was forthcoming.
See R Vs. Mary Ann Nash (1911) 6 C.A.R. 225, at p. 228. Though this constitutes
circumstantial evidence, it is proof beyond every reasonable doubt of the guilt of the appellant. For
these reasons, we dismissed the appeal.
See also, Olusola Adepetu v The State 1998 5 NWLR 565 185
It is the correct proposition of the law that circumstantial evidence should be narrowly examined
Udedibia v The State.
Circumstantial evidence is capable of proving a proposition with the accuracy of mathematics R
v Taylor
Per Ogundare, JSC delivering the leading judgement in Olushola Adepetu v The State "Before
circumstantial evidence can form the basis for conviction, the circumstances must clearly and
forcibly suggest that the accused was the person who committed the offence and that no one else

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could have been the offender Fatoyinbo v A.C. of W.N., Udedibia v The State, Adie v The
State, Omogodo v The State"
In Ukorah v The State, Idigbe JSC held that because of the break in the chain of evidence, the
appellant cannot be convicted. Although, the appellant had beaten the deceased in a fist fight but
there was a deep long cut on his back when his corpse was seen by the police and it cannot be
proven what exactly killed him. That deep long cut has broken the chain of evidence. Unlike in
Onufrejczvk (Onufreychuk?) 1995 1 All ER 247 which is distinguishable as the body of the
deceased was not found so nothing broke the chain of evidence.
In Peter Igho v The State, the appellant although seen by witnesses carrying the deceased on his
bicycle when she was last seen alive denied not only carrying but seeing her at all. Eso JSC held
"The only irresistible inference from the circumstances presented by the evidence in this case is
that the appellant killed the deceased. We can find no other reasonable inference from the
circumstances of the case. The facts which were accepted by the learned trial Judge, amply
supported by evidence before him, called for an explanation, and beyond the untrue denials of the
appellant (as found by the learned Judge) none was forthcoming. See R Vs. Mary Ann Nash
(1911) 6 C.A.R. 225, at p. 228 (throwing baby in the well case)."
Per Ogundare, JSC delivering the leading judgement to which three others agreed in Olushola
Adepetu v The State (the man accused of killing his GF at Ibadan based on last seen principle
who also told several lies in terms of explaining where he took her to that night before coming
back to pick his car. He could not give reasonable explanation to exonerate himself) concluded
that "the totality of the circumstantial evidence against him raised a case much higher than
suspicion; it sufficiently proved the case against the appellant beyond all reasonable doubt"
However, Kutigi JSC in a well-considered dissenting judgment held relying on Ukorah v The
State that "in this appeal the medical report is clear and unambiguous. But what has to be
established is the link between the appellant and/or his actions with the cause of the death of the
deceased. In other words, that the appellant was armed with a sharp object when he was together
with the deceased at all material time. And until this problem is resolved, it must be unsafe in my
view to convict the appellant of murder. From the proved and accepted facts here, it is clear to me
that the circumstances surrounding the death of the deceased do not make such a complete and
unbroken chain of evidence as would justify his conviction". This is in line with the long deep cut
in Ukorah as it could not be proved that the accused was with any object held by SC. He also
distinguished Peter Igho as in Igho the cause of death was not ascertained so it cannot be a good
authority but Ukorah is.
Arichie v The State 1993 6 NWLR 302 72, here, a cab man driving a car could not account for
the whereabouts of the deceased who was never found. He claimed that while they were on the
road, a vehicle hit them from behind and the car summersaulted and fell into a river and that’s how
the accused died but the car couldn’t be found. The accused was duly convicted.
Attah v The State 1993 4 NWLR 283, The victim and her BF approached a quack doctor for
abortion and the quack doctor found out that the lady was 3 and half months pregnant and they
agreed to carry out the abortion and the BF left her there but when he came back he found a

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motionless body of the lady but the quack doctor said that she was sleeping and shouldn’t be
disturbed. He left and came back again but couldn’t find the body of the lady either dead or alive.
The quack doctor was arrested and put on trial and he claimed again that since the corpse wasn’t
found that he committed no proven offence but the court rejected this argument and convicted him
based on circumstantial evidence.
Technology is now helping in establishing unbroken chain in circumstantial evidence especially
in advanced countries with DNA tests, finger prints and even CCtv cameras.
Summary:
R v Taylor, accuracy of mathematics
Udedibia v The State, close examination
R v Mary Ann Nash, Adie v The State, Omogodo v The State, conviction can be on
circumstantial evidence when clear, unequivocal and leads to the guilt of the accused
R v Robertson, it has to be proved to lead to the death of the accused
Peter Igho v The State, the bicycle case, convicted on last seen
Olushola Adepetu v The State, Ibadan BF, convicted on last seen, Kutigi JSC dissented relying
on Ukorah because although cuts were on the deceased body, it couldn’t with accuracy of
mathematics be linked to the accused.
Ukorah v The State beat the accused in fist fight but long cut discovered on the back, no
conviction, break in chain of causation as it couldn’t be proved with accuracy of mathematics what
caused death
Arichie v The State, the cab driver who couldn’t account for passenger, convicted on last seen
Attah v The State, BF and GF and the quack abortion doctor, convicted on last seen

REAL EVIDENCE: when the prosecution tenders any material, objects or things, it will
constitute real evidence. For example, in a case of stealing, if the item stolen is found and tendered
then it is a real evidence. It may also be the instruments or anything used in committing the offence
like guns, cutlasses, acid, knives etc. Indeed, any object or thing that wouldn’t come under any of
the previous classifications, will come under real evidence. It may be animate or inanimate object
(lifeless or living), movable or immovable etc. it can basically be anything, if it is not documentary,
oral or any of the above discussed categories then it comes under real evidence. For example, if
there’s a blood stain on the clothe of the accused and it can be matched with that of the victim, it
is a real evidence.

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4/02/2020 PROF AMUSA

HEARSAY EVIDENCE
This is where a witness repeats a statement made or tenders document written by another person
in proof of the fact stated, then it is hearsay.
There are 2 main reasons for excluding hearsay
i. The memory of the witness may be defective or his narration of events may be incorrect or
he may deliberately falsify the statement. Usually, the oath administered in court as well
as the cross examination will allow the court to notice these defects.
ii. The court will be robbed or deprived of the opportunity to watch the demeanour (body
language and facial expressions) or the outward manner of a witness to determine whether
he’s a witness of truth or not. Usually, the court can form an opinion from the mannerism
of the witness, thus the reason the witness is always directed to look straight at the judge
while giving evidence but the court is denied of this opportunity in hearsay.
NB it’s only at the trial courts that oral evidence may be given as only docs and records are used
at the appellate court. The above are the 2 main reasons the court reject hearsay. However, there
are so many exceptions to the hearsay rule in the Act that an author has questioned whether the
rule even really exists.
Section 37 of the Evidence Act, shows that hearsay belongs to the area of evidence that the court
may not admit on exclusionary rules except there are strong or compelling reasons to admit it. The
exceptions are so many, see the provisions below.

s37. Hearsay means a statement-

(a) oral or written made otherwise than by a witness in a proceeding; or
(b) contained or recorded in a book, document or any record whatever, proof of which is not
admissible under any provision of this Act, which is tendered in evidence for the purpose of proving
the truth of the matter stated in it.
s38. Hearsay rule: Hearsay evidence is not admissible except as provided in this Part or by or
under any other provision of this or any other Act.

PRIMARY EVIDENCE: When the original of a document is produced for inspection of the
court, it is called primary evidence. Section 86
Primary and Secondary Documentary Evidence
s85. Proof of contents of documents: The contents of documents may be proved either by primary
or by secondary evidence.

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s86. Primary evidence

(1) Primary evidence means the document itself produced for the inspection of the court.
(2) Where a document has been executed in several parts, each part shall be primary evidence of
the document.
(3) Where a document has been executed in counterpart, each counterpart being executed by one
or some of the parties only, each counterpart shall be primary evidence as against the parties
executing it.
(4) Where a number of documents have all been made by one uniform process, as in the case of
printing, lithography, photography, computer or other electronic or mechanical process, each
shall be primary evidence of the contents of the rest; but where they are all copies of a common
original, they shall not be primary evidence of the contents of the original.

SECONDARY EVIDENCE: production of documents other than the original is secondary

evidence. They are generally documents that cannot be primary. Section 87
s87. Secondary evidence includes-
(a) certified copies given under the provisions hereafter contained in this Act:
(b) copies made from the original by mechanical or electronic processes which in themselves
ensure the accuracy of the copy, and copies compared with such copies;
(c) copies made from or compared with the original:
(d) counterparts of documents as against the parties who did not execute them; and
(e) oral accounts of the contents of a document given by some person who has himself seen it.

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FACTS IN ISSUE, RELEVANCY AND ADMISSIBILITY

NB: It becomes necessary to define facts because what is brought to the court are mere facts and
remain as such until admitted by the court when they become evidence.
Facts has been defined as the state of things, relation of things or anything that can be perceived
by any of the senses. It can also be defined as any mental condition of which a person is conscious.
Section 258. Which is the definition section, gave the above definition.
s258. (I) In this Act-
"fact" includes-
(a) anything, state of things, or relation of things, capable of being perceived by the senses: and
(b) any mental condition of which any person is conscious.
The definition is so wide that anything that can be related intelligibly is a fact. Anything under the
sun that can be related to the court in an intelligible way except metaphysics is a fact not recognized
by the court e.g. saying you killed someone because you suspect him of witchcraft, this can’t be
admitted.
Facts is described as the fountain head of the law as cases are decided based on facts available, it
is upon facts that the court can apply the law. Courts only give judgements based on facts. The
facts can’t be mute but alive, real, imminent, it must be a live issue not hypothetical like in mock
trials.
See AG Abia v AG Federation (the Local Governments revenue allocation case)2006 All FWLR
338 604 657 for the definition of fact. In the case Per Niki Tobi JSC, “It is elementary law that a
case is decided on the facts before the Court. It is now an axiom or an aphorism to say that facts
are the fountain head of the law. Decisions of cases are related to facts and they should be construed
in their factual milieu.”

Fact in issue is defined by Section 258 as any fact either by itself or in combination with other
facts, the existence, non-existence, nature or extent or any right, liability or disability asserted or
denied in any proceedings necessarily follows.
s258. (I) In this Act-
"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.
It’s usually the main fact that is in dispute between the parties that’s fact in issue. It is upon it that
a party may get or be denied judgment.
In an offence of stealing for example, it is the elements of the offence (something has been stolen,
it is something capable of being stolen, there’s intention to permanently deprive the owner of its

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possession etc.) that will be the fact in issue because proving or disproving of those determines
whether the accused is convicted or not. The case depends on it.
In civil proceedings the subject matter of the action will determine what will be the fact in issue
e.g. tort of defamation includes statements, the statements are damaging, publication etc. For facts
in issue See Onafowokan v WEMA Bank plc 2011 All FWLR 565 201. In this case, the appellant
had been sued at the TC but he raised a preliminary objection for the suit to be struck out for want
of merit and was indeed struck out. The respondents then successfully appealed to CA who
remitted the case to the TC for trial. The appellant has now appealed to the SC and the respondent
raised the argument that that the facts in issue have not been proven as the provisions in CAMA
and Rules of Orders of Court that made the suit to lack merit weren’t proved by the appellant at
the TC and was rejected by the CA when raised and cannot now be raise at the SC stage.
MAHMUD MOHAMMED, J.S.C. (Delivering the Judgment by the Court) “The main complaint
of the 1st Respondent on ground 1 is that the Appellant did not raise the issue of a perceived
inadequacy in the Respondents pleadings in relation to Section 393(3) and Clause 5 of Schedule
11 of the Companies and Allied Matters Act at the Court of trial and therefore the trial Court did
not make any pronouncement on the issue. However, the record of appeal at pages 94, 95 and 97
show quite clearly that the issue was indeed raised and canvassed at the trial Court. In any case,
the learned Counsel to the 1st Respondent himself has indicated in paragraph 3.04 of the 1st
Respondents brief that-
‘Particulars (a.), (b.) (c.) of Ground 1 quoted above, reflect the main complaint of the Appellants
before this Honourable Court against the decision of the Court below.’
Indeed, that is the whole purpose of a ground of appeal. The Appellants ground 1 therefore as
quoted earlier in this judgment is a good ground of law even without the particulars. The
Preliminary Objection to the ground is therefore over ruled because a ground of appeal is simply
supposed to represent an Appellants complaint against the decision he is not satisfied with and
which he has grouse against and wants an appellate Court to correct and remedy. See Ojeme v.
Momodu 11(1983) 1S.C.N.L.R.188.”

RELEVANT FACTS: Basically, the court will only accept evidence that is relevant. A fact must
be relevant before the court will accept it. Phipson defined relevant fact as “facts which as a matter
of ordinary logic or experience tend to render the existence of other facts probable or improbable.”
ADMISIBILTY: on the other hand, means a fact which the Evidence Act or any other Statute in
force permits or allows its admissibility.
Relevant Evidence in Suits and Proceedings
s1. Evidence may be given in any suit or proceeding of the existence or non-existence of every
fact in issue and of such other facts as are hereafter declared to be relevant, and of no others
Provided that -

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(a) the court may exclude evidence of facts which though relevant or deemed to be relevant to the
issue, appears to it to be too remote to be material in all the circumstances of the case; and
(b) this section shall not enable any person to give evidence of a fact which he is disentitled to
prove by any provision of the law for the time being in force.
Relevant facts are usually determined by common sense or logic but admissibility is a matter of
law. However, a fact must be relevant before it becomes admissible. A fact though relevant may
be inadmissible as a result of statutory provisions, evidence act, constitution or public policy. For
example, Section 308 of the constitution affords immunity to the governor and deputy governor,
facts against them in that sense will not be admitted in court see IMB Securities v Tinubu. In this
case, although there were relevant facts and evidence against the then governor of Lagos state,
Ahmed Tinubu but he couldn’t be sued and the facts couldn’t be admitted because of the immunity
he enjoyed as a resulted of s308 CFRN.
Similarly, there are some provisions also in the EA (this will be examined in details in subsequent
lectures) that will not allow certain facts because they are too remote (e.g. could waste the time of
the court e.g. asking a party whether he can perform in bed as man in a matter on legal title to land,
it is obviously irrelevant and the court will reject it) or may bring a party to ridicule or malice. The
court may exclude such relevant facts. But once a fact is relevant and passes the legal test of
admissibility, the court will admit it.
s2. For the avoidance of doubt, all evidence given in accordance with section 1 shall, unless
excluded in accordance with this or any other Act, or any other legislation validly in force in
Nigeria, be admissible in judicial proceedings to which this Act applies:
Provided that admissibility of such evidence shall be subject to all such conditions as may be
specified in each case by or under this Act.
s3. Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible
by any other legislation validly in force in Nigeria.
Generally, a fact must pass those two tests of relevancy and admissibility before they’re entertained
by the court provided they’re legal and not against public policy. But all admissible facts are
relevant, this is because they must have first passed the test of relevancy to be admissible. Thus,
whereas all admissible facts are relevant, not all relevant facts are admissible.
All courts of law in Nigeria will only be interested in admitting only relevant fact or facts in issue
and no other. See section 1 of the Act., above.
Also note that the act doesn’t define relevant fact but describes situations in which facts may be
relevant. We will do this in the next lecture on Sections 4-13 (Part II) of the Act on Relevance of
Facts.

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7/02/2020 Prof Amusa

THE EVIDENCE ACT SECTION 4 AND THE DOCTRINE OF RES GESTEA
This is established in Section 4 of the Act, previously section 7 in the old Act. The Doctrine is an
attempt to explain or throw light on fact in issue. Sometimes the fact in issue may be difficult to
explain or obscure in terms of origin and res gestae is to explain it
Relevance of facts forming part of the same transaction
s4. Facts which, though not in issue, are so connected with a fact in issue as to form part of the
same transaction, are relevant, whether they occurred at the same time and place or at different
times and places.
Res gestae means statement or act which are most connected with the facts in issue. The doctrine
also refers to collection of facts relevant to the facts in issue in terms of proximity of time, place
or circumstances.
Thus, it is just a type of relevant fact. One of the types of relevant facts is res gestae or Section 4.
If facts in issue is so obscure or so difficult to explain, then comes the objective of res gestae which
is to throw light on the facts in issue. When a fact is difficult to explain, res gestae comes in to
throw more light, that is its main objective.
Res Gestae under the common law has 3 requirements or elements before it can be admissible
i. Facts to be used as res gestae must relate to the act or relate to the facts which they
accompany. See Agassiz v London Tramway Co Ltd. There’s an accident involving the
tramway and one of the passengers reported that the driver wasn’t driving properly. The
conductor also stated that the driver was negligent and had gone offline severally being a
new driver. But the fact that he had been reported severally didn’t matter because it
occurred in the past. Thus, applying the proximity test. The court held that the statements
merely refer to the past acts of the defendant.

This condition is aptly illustrated by Agassiz v London Tramway Co. Ltd. (1873)21 W.R
199. The plaintiff sued the defendant company for negligence as a result of collision by the
defendant’s tram in which the plaintiff was injured. After the collision a passenger said of
the driver” this fellow’s conduct ought to be reported” and the conductor replied that” he
has already been reported for he has been off the line five or six times today- he is a new
driver. It was held that this statement was inadmissible as the collision was over and as it
referred not to the res but to the past act of the driver. If the statement is about past events
or unconnected events it will not be admissible.

ii. The statement must have been made by a person involved. R v Fowkes. It has been
suggested that the statement must be made by the actor and reliance has been placed on
Howe v. Malkin (1878)40 LT196. In that case a statement made by a person concerning
the boundaries of property contemporaneously with the performance of some act on the
land by some other persons was held inadmissible because the declaration was by one

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person and the accompanying act was performed by another person. But this cannot be
taken as a general proposition of law because at least in criminal cases declarations by
victims and by assailants are often received in evidence under this heading. Thus, it can
be safely said that as a matter of practice, the court will receive statement and
declaration of victims as well as those of assailants, non-victims or non-actors.

The statement or declaration must be made either by the actor or the victim. This is
especially so in criminal cases. In Okokor v. The State (1969) NMLR 140 and Sunday
Akpan v. The State (1967) NMLR 185, the statements admitted as forming part of the res
gestae in those cases were made by the victims/the deceased.

However, exclamation of a by-stander may be received as res gestae as was done in Miline
v. Leister (1862) 7 H&N 786.

READ FURTHER: Sule Salawu v. State (1971) 1 NMLR 249, R v. Bang Weyeku (1943)
9 WACA 195, Oyename v. Oyedele (1957) LLR 37

iii. The fact must be contemporaneous with the act. This is the most controversial aspect of
res gestae. It has elicited divergent opinions of text writers and conflicting judicial
decisions. R v Bedingfield, in the case the accused was with a woman in a room and she
came out with her throat cut and said to her aunt “Oh! Aunty, see what Harry has done to
me and she died shortly afterwards”, the defendant claimed that the victim committed
suicide, the court rejected the woman’s statement as not being contemporaneous because
it was made after the act. The court held that the statement must be exactly or strictly
contemporaneous with the act and not soon after the act or incident.

R v Christie, in the case someone, an underage girl was assaulted and she narrated it to the
mother and later re-narrated it to the police, the police and the mother also testified but the
court held that it was not exactly contemporaneous with the act and therefore not
admissible.

This generated lots of controversies and criticisms. The controversy led the court to modify
the rule in Ratten v R, the accused fired a gunshot that killed his wife. He claimed to have
been cleaning his gun and mistakenly shot her. However, phone operator gave evidence
that the woman had made a distress call that she was about to be shot before she was shot.
The court adopted sufficient contemporaneity or approximate contemporaneity test
thus modifying the test, it no longer need to be strictly or exactly contemporaneous but
only has be sufficiently or approximately contemporaneous to be admissible.
Summary:
1. Section 4, facts though not in issue but are so closely connected and form part of the same
transaction whether or not they happened at the same time or place may be admissible.

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2. Must be in the same act or fact (proximity) Agassiz v London Tramway (the new reckless
driver)
3. Statement must be made by an actor involved, Fowkes v R (statement made on land while
others were performing on it, in admissible) Sunday Akpan v The State (12-year-old boy
heard the mother say, Sunday has killed me o), Okokor v The State. But exclamation by
by-stander may also be admitted Miline v R.
4. Must be contemporaneous, strictly/exactly contemporaneous R v Bedingfield (slit throat,
aunty see what Harry did to me), R v Christie (molested young girl).
Sufficiently/approximately contemporaneous R v Rattel.
POSITION IN NIGERIA
It’s contained in Section 7 of the old Act but now in section 4., provides that facts though not in
issue but are so connected with facts in issue as to form part of the same transaction are relevant
whether they occur at the same and place or at different times and places.
See Sunday Akpan v The State SUIT NO. SC14/1967 where a 12-year-old son was saying to the
murderer to leave my mother and not machete her. The court rejected the evidence for not being
contemporaneous enough. The boy said that he saw the accused who was living with the boy’s
mother (the victim) enter with a machete but he went to bed but shortly afterwards heard his mother
shout “Sunday has killed me” and when he ran out, he saw him cutting the mother with the
machete. He ran off to his grandmother’s hut, when the two came back shortly afterwards, the
accused couldn’t be seen but his mother was dead with several machete cuts in the pool of her own
blood. The grandmother confirmed this and even the doctor also confirmed that she died as a result
of the cuts. The TC convicted him for murder but upon appeal, SC overruled the TC and allowed
the appeal especially due to the age of the principal witness as underage.
Per Lewis JSC “In our view, this statement was admissible both as a dying declaration and as part
of the res gestae, but as the evidence of the making of it was given by the boy, the 1st prosecution
witness, Mr Cole in his 2nd ground of appeal argued, rightly in my view, that it could not be
corroboration of the boy’s own evidence as the learned trial Judge held it was. It would appear to
us that anxious over the boy’s age as he was the only eye witness the learned trial Judge did in fact
look for corroboration though he did not state either that he was so doing or that it was desirable
so to do. As however he wrongly found that the boy’s evidence that the deceased said “Sunday has
killed me” was corroboration of the story told by the boy we cannot tell with certainty whether
without what the learned trial Judge wrongly held to be corroboration he would have accepted the
boy’s evidence as warranting his convicting the accused of murder when he did not even warn
himself of the importance of weighing the boy’s evidence with great care.”
See also Udo v R the accused hit the woman on the floor and she was badly injured, she reported
that it was the accused that caused the serious injuries that eventually killed her but the question
was whether those statements were admissible as res gestae and the court again relied on res
gestae contemporaneous principle and rejected the evidence.
R v. Bang Weyeku (1943)9 W.A.C.A 195. In that case the accused was charged with murder and
the only important evidence against him was the statement of the deceased shortly after he had

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been stabbed that “Bang has shot me” which he made in the absence of the accused. It was held
that this was inadmissible as forming part of the res gestae.

TWO MAIN QUESTIONS OR ISSUES ARE

i. Whether the Doctrine of res gestae is wider in scope than the provisions of s4 of the Act?
ii. Whether courts in Nigeria just try to admit res gestae as part of Nigerian Law?
With regards to the first question, if you construe res gestae prior to the decision in Rattel v R, it
will be right to say that s4 is wider in scope than res gestae but post Rattel v R shows that the
doctrine of res gestae and Section 4 have become in pari materia and none is wider in scope than
the other.
On the second, whether the courts are right to adopt res gestae as part of Nigerian law? Even
under the old Evidence Act, the court could still not justify relying on res gestae to interpret the
evidential rules in Nigeria, and they would not be right to use res gestae as the basis of evidential
rule because of similar provisions in the Acts (either old s7 or new s4).
The source of evidence in Nigeria have been narrowed down to Evidence Act and other evidential
rules in other Statutes as provided for in Section 3 of the Act. Thus, it’ll be against the law to adopt
common law rules.
s3. Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by
any other legislation validly in force in Nigeria.
The Nigerian act (whether they occurred at the same time and place or at different times and
places) now covers both the strict or exact contemporaneity and sufficient or approximate
contemporaneity rules. Thus Section 4 now holds sway especially by Section 3 validation.
The rule however is that facts to be adopted under Section 4 must not be vague, uncertain or
ambiguous Donal Ikomi & Ors v The State SC.28/1986. A HC judge in the old Bendel had his
police orderly die (he shot a gun), before he died he was shouting “Oga don killed me o” as was
testified by witnesses, the statement was vague as one doesn’t know which oga he was referring
to, whether the judge or the Oga at the office. Thus, the statement must be quite clear or specific
and not equivocal or vague.
Per NNAMANI, J.S.C. (Delivering the Leading Judgment) "The next principle is of course that
even if the depositions and statements attached to the information disclose an offence, an accused
person should not be put on his trial if there is no link between him and that offence. If the Judge
grants consent to prefer an information in the absence of such link such information is bound to
be quashed.
The controversy in this case has centred around the question whether that link existed judging
solely from the evidence contained in the depositions and statements, in the circumstances of this
case in which there is no dispute that they do disclose an offence – murder.

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In Atanda v. Attorney-General, Western Nigeria (1965) NMLR. 225. another case on which the
appellants placed so much reliance, this Court held that although a Judge has power under Section
340(2)(b) of the Criminal Procedure Act to consent to an information being preferred without a
committal for trial, the power should be exercised with discretion. It further held that as the need
for the consent is to prevent a vexatious prosecution or one that will serve no useful purpose, it is
only when there is a clear case on the deposition that the Judge gives his consent."

READ THE ARITCLE THAT PROF DROPPED, THOUGH AN OLD ARTICLE ACC TO
HIM.

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11/02/2020 Prof Amusa

OTHER TYPES OF RELEVANT FACTS

S5: FACTS WHICH ARE THE OCCASION, CAUSE OR EFFECT OR FACTS IN ISSUE
SECTION 5 OF THE ACT, facts which are the occasion, cause or effect, immediate or otherwise,
of relevant facts, or facts in issue, or which constitute the state of things under which they
happened, or which afforded an opportunity for their occurrence or transaction, are relevant.
These are facts that provide opportunity or facilitate the occurrence of facts in issue, events, or
show how the facts occurred etc. They are auxiliary or supporting facts which can be described as
circumstantial evidence that is admissible under s5.
R v Abagon 1973 3 ES CLR 11 137 soon after a case of burglary was reported, during investigation
fragments of broken glasses were found in the shoes of the accused and those fragments tally with
the ones burgled. The evidence was accepted as facts that show how the events actually happened
or occurred under s5.
In R v Stewart, the court admitted the footprints found at the scene of the crime under Section 5,
if the accused hadn’t gone to the crime scene, his footprint wouldn’t be there. So, it shows or
facilitates the occurrence of the event.
Isibor v The State 2001 FWLR 8 1071, the case of robbery where the robbers, the accused being
one of them were in a taxi which had been stolen from the owner a day earlier, snatched the car at
gun point and drove away in the snatched car leaving the taxi behind and it was admitted under s5.
The appellant was charged with armed robbery contrary to and punishable under section 1(2)(a)
of the Robbery and Firearms (Special Provisions) Decree (now Act) No. 47 of 1970 as amended
by the Robbery and Firearms (Special Provisions) (Amendment) Decree (Act) No.8 of 1974. The
particulars of the offence were stated to be that on or about the 5th day of April, 1980 along Old
Ife Road by the Express Way Ibadan, the appellant armed with firearms, and in the company of
other persons unknown, robbed one Alhaji Y.A.Afolabi of his peugeot 504 car with registration
No. OYB 2118 A valued at about N9,000.00 and a lady’s bag containing N600.00. Without going
into much details of the facts, the evidence which was accepted by the two courts below, in
summary, was that the appellant was on 6 April, 1980 at about 1.30 a.m. at a police check point
near Benin City found in possession of a peugeot 504 car with registration No. OYB 2118 A. He
drove it from Lagos direction. After some initial questioning by the police, he was ordered to come
out of the vehicle and thereafter was arrested. On being questioned further as to how he came by
the car in which some women wears, passport photograph of a woman and a bunch of keys were
found, he said those items belonged to his boss and that she permitted him to drive her car to Benin
to visit his sick father. The police were not convinced; so, they took him into custody. It later
turned out that the vehicle had been snatched at gun point on 5 April, 1980 between 8.30p.m. and
8.45p.m. from the owner, Alhaji Yekini Abolade Afolabi, who testified as p.w4, on his way to
attend a marriage party at Green Spring Hotel, Ibadan in the company of one Mrs. Yetunde

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Adegbola, P.W.5. The appellant was found guilty of armed robbery by Olowofoyeku, J, sitting at
the High Court, Ibadan on 4 November, 1980 and sentenced to death.
The court adopting the taxi cab left at the crime scene as exhibit adopting s5 held that “…I have
the evidence of 6th p.w. Bashiru Popoola who testified that he was robbed of his taxi cab a day
before it was used for the robbery of the 4th p.w’s car and that the police had since returned his
taxi cab to him. The use of the taxi cab, for the purpose of robbery, its abandonment at the scene
immediately after the robbery, the recovery thereof by the police at the scene shortly after the
robbery and the fact of its having been the subject of a different robbery a day earlier all make it
impossible to give any credence to the story of the accused as to how he stole the peugeot 504
saloon car No. OYB 2118 A.”

MOTIVE, PREPARATION AND PREVIOUS OR SUBSEQUENT CONDUCT.

SECTION 6, facts that show motive or constitute a motive or preparation of any fact in issue is a
relevant fact. It provides that
6. (I) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue
or relevant fact.
(2) The conduct, whether previous or subsequent to any proceeding-
(a) of any party to any proceeding, or an agent to such party, in reference to such suit or
proceeding or in reference to any fact in issue in it or a fact relevant to it; and
(b) of any person an offence against whom is the subject of any proceeding, is relevant in such
proceedings if such conduct influences or is influenced by any fact in issue or relevant fact.
(3) The word "conduct" in this section does not include statements, unless those statements
accompany and explain acts other than statements, but this provision shall not affect the relevance
of statements under any other section.
(4) When the conduct of any person is relevant, any statement made to him or in his presence and
hearing which affects such conduct is relevant.
Ordinarily, evidence of motive will not be important or crucial in proving the fact in issue but
where its available, it may be admitted as relevant fact. Motive in this sense may be love, inordinate
ambition, hatred, envy, revenge etc. Jimoh Ishola v The State 1978. The accused had land
disputes with the villagers in Alimosho village including with the deceased but particularly
threatened to kill him. That day as testified by one of his (accused) workers, he had asked him to
join him and others in going to kill the deceased but he refused and they eventually went and killed
the deceased. Other witnesses also testified that he had said he would kill the deceased and had
previously stabbed him around his eyebrow.
Per Idigbe JSC delivering the leading judgment “We would like, also, to add that although proof
of motive on the part of an accused on a charge of murder is not a sine qua non to his conviction

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for the offence yet if evidence of motive is available it is not only a relevant fact but also admissible
under s9 of the Evidence Act" (now s6)
Lord Atkinson in R v Ball cited in Jimoh Ishola, Per Idigbe JSC delivering the leading judgment
"Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused
to show he entertained feelings of enmity towards the deceased, and that evidence not merely of
the malicious mind with which he killed the deceased, but of the fact that he killed him. You can
give in evidence the enmity of the accused towards the deceased to prove that the accused took the
deceased's life. Evidence of motive necessarily goes to prove the fact of the homicide by the
accused, as well as his 'malice aforethought' in as much as it is more probable that men are killed
by those who have some motive for killing them than by those who have not."
See also Iyaro v The State 1988 1 NSCC 168 The facts of the case are as follows: -The PW1 and
PW2, the victims armed robbery were at the material time living in Festac Town along Badagry
Road. On the fateful day, that is 7th November, 1982 they attended a club meeting at Kirikiri road
which ended around 6.00pm. They walked to Osondo Motor Park along Kirikiri to take a Taxi
back to Festac Town. While they were waiting the Appellant driving Taxi Cab No. LA 3483 AL
emerged and they hailed him to stop. He did and at the time he was alone in the Cab. PW1 and
PW2 after bargaining with the appellant chartered the Cab to Festac Town. They entered the cab
PW1 sitting on the right side of the back-passenger seat while PW2 sat on the left side and wound
up the glasses.
Instead of the appellant making a U-turn to take the road leading to Festac Town, he drove straight
along Kirikiri road. PW1 and PW2 had to challenge the appellant about three times before he
reversed and took the road leading to Peoples Bus Stop. He drove along that road until he was
challenged again by PW1 who insisted that he must turn and follow Idowu Martin Street, the road
known to them and that would take them to Festac Town. He did so and turned his car radio
Cassette very loud. They requested him to reduce the sound but he refused.
Apprehensive of the appellant's conduct PW1 removed all the jewelleries she was wearing into her
purse which she put inside a paper bag in which she was carrying some clothes and covered the
same with her wrapper.
The appellant drove to Mile 2 long Badagry express way and on reaching the first overhead bridge,
he stopped and parked. As soon as he stopped, the 2nd accused carrying a black port-folio in his
arm-pit walked to the car, opened the front door on the passenger side, put one leg inside and
beckoned some people with his hand. About 10 people emerged some of whom were brandishing
daggers. They proceeded to the cab, opened the right-side door of the back seat and robbed PW2
of her bangles, rings, neck-chain and a purse containing N1,150.00. When they started walking
away, the appellant pointed with his finger to the side where PW1 opened the door on her side and
robbed her of her belongings consisting of a neck-chain, a wrists-watch, bangles, 3 pieces of
Guinea brocade prints; two pieces of wax material and cash all amounting to N2,250.00.
After the robbery was completed the appellant and the 2nd accused with PW1 and PW2 sitting still
in the back seat of the cab resumed driving in the direction of Festac Town. On reaching the 2nd
overhead bridge on Badagry Express way, the appellant stopped for the 2nd accused to disembark

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but PW1 and PW2 prevented him from doing so and as a result altercation ensued between them
which attracted to the scene, some people waiting at a nearby bus stop. When the appellant
observed that people were gradually gathering at the Scene he tapped the 2nd accused on the
shoulder and drove away at a high speed. On reaching the 1st gate of the Festac Town, he
demanded that the PW1 and PW2 should disembark but they refused and insisted that he must take
them to Festac Police Station to lodge a complaint of what had happened to them. Appellant drove
on very fast and past the Police station without stopping. PW1 and PW2 continued screaming
inside the cab which attracted the people nearby and followed the car in pursuit.
On reaching the home of PW1 the appellant stopped and both himself and 2nd accused tried to
escape. The crowd that gathered overpowered them and apprehended them. The Police later
arrived at the Scene, arrested the appellant and the 2nd accused while they invited PW1 and PW2
to the Festac Police Station where they lodged a complaint.
The SC affirmed their conviction and sentence Per Wali JSC observing “The conduct of the
appellant from the time he picked 1st P.W. and 2nd P.W. in his taxi to the time he parked the same
at Mile Two on Badagry Express Way to facilitate the commission of the robbery on the
aforementioned witnesses, leaves no room for doubt that the whole incident had been prearranged.
As for the actual robbery with violence committed on 1st P.W. and 2nd P.W., they gave clear and
cogent evidence which the learned trial Judge painstakingly considered and accepted.”
Atano v AG Bendel State 1988, the accused was a banker and went to the bank premises at an
unholy hour, he sent the guard to go and put on the generator and immediately the security man
left he locked the gate and few minutes later, the whole building was engulfed with fire, his defence
was that there was power surge, but he did it to conceal evidence as he was under investigation by
the bank for stealing huge amount of money of about N400k, that again showed motive as was
held Per Agbaje JSC "From what I said above, I come to the conclusion that the motive the
prosecution attributed to the appellants for the commission of the offence of arson charged has
been proved in this case. In other words, the prosecution had proved not only that the appellants
were persons who had the opportunity to commit the offence of arson. It was also proved by the
prosecution that they had motive to commit the crime that is to say to destroy the evidence which
could lead to the discovery of the money of the bank stolen by them."
Nweke v The State 2001 FWLR 40 1595, H was arraigned for killing the W and the prosecution
proved that the W was 8 months pregnant and he disowned the pregnancy and that’s why he killed
the W. Per Ogundare JSC delivering the leading judgement stated the facts as follows: Before I
go into a consideration of these issues, I need set out the facts. The case for prosecution is that the
appellant and the deceased, Josephine Pius Nweke were husband and wife; they both lived together
at Oribe village, via Ago Iwoye, Ogun State, until the death of the deceased (appellant’s wife) on
November 11,1992. The couple had a kolanut farm at Odoliwu village, via Ago Iwoye. In the
morning of 11th November 1992, the appellant and his wife left their Oribe village together for
their farm at Odoliwu village. This was at about 10 a.m., they passed by Tairu Hassan and Olusola
Kadiri (PW3 and PW4 respectively) in the Oribe village and exchanged greetings with them. They
all knew each other before that day as they lived in the same village – Oribe. About an hour after
the appellant and his wife had left PW3 and PW4 for their kolanut farm, the latter heard an unusual

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noise from the direction of the farm of the appellant. They moved towards the farm in order to find
out what was the cause of the noise. On their way to the appellant’s farm they met the appellant
coming back from the farm; he was alone. They inquired from the appellant the cause of the noise
from his farm. The appellant replied that his wife (the deceased) was a troublesome woman and
that she was carrying a pregnancy that did not belong to him. He added that he had asked the
deceased to take the pregnancy to the owner but the deceased refused to do so. When PW3 and
PW4 asked the appellant the whereabouts of the deceased, he replied that the deceased had left the
farm through another route. PW3 and PW4 walked with the appellant to the former’s hut where,
at the appellant’s request, they gave him water to drink. The appellant, who was all the time
carrying a load on his head and had a machete in his hand, put the load down in order to drink the
water they gave him. It was at this stage PW3 and PW4 noticed that the appellant had in the luggage
the same clothes and pair of slippers the deceased wife wore that morning when she passed them
on her way to the farm. They became suspicious. The appellant noticing the curiosity of these two
witnesses for the prosecution lifted up his load, put it on his head and went away.
PW3 and PW4 decided to find out what happened in the farm and left for the appellant’s farm. On
reaching there they found the dead body of his deceased wife with her throat slashed. She was
naked and lying in a pool of blood. They made a report to the police who then commenced
investigation into the death of the deceased. Police took a photographer to the scene and the latter
took some snapshots of the deceased. The corpse of the deceased was later conveyed to the State
Hospital mortuary at Ijebu-Ode, where PW1 performed a post-mortem examination on the corpse.
According to the evidence of PW 1 which the learned trial Judge accepted, the corpse of the
deceased had a deep cut in front of the neck. On the chest there was nothing significant. The
examination of the abdomen revealed that the deceased was pregnant. On opening the abdomen I
found a dead male baby. There was no fracture of the leg. My opinion as to the cause of death was
loss of blood due to the cut throat.
The appellant was arrested some days after the incident and on his arrest by the police; he made a
statement in which he denied killing his wife. In his evidence at the trial he denied going together
with his wife to the kolanut farm. He testified that it was the wife who went alone to the farm to
pick kolanuts; he went to another farm to work. On his return from the farm he went to, he inquired
from neighbours if his wife had returned from the kolanut farm. He was told she had not returned.
It was then night time and he could not do anything that night. The following morning, however,
he set out in search of his wife. Here is what he said in evidence:
“The following day I went to look for her at Odoliwu. When I asked some villagers if they had
seen my wife in the village, they told me they did not see her and that she never came to that village
the previous day. When I did not find her after a thorough search I returned to Origbe village from
Origbe I went to Imodi-Mosan. When I got to Imodi-Mosan, I went to my wife’s senior sister’s
house to report to her that I could not find her sister, my wife. The sister was not at home. When I
looked around for her sister at Imodi-Mosan I did not find her, I went to our hometown. I did not
know that my wife was already dead; I had thought she had travelled home that is why I went
home to look for her. In our hometown, I inquired from people if my wife had come home. They
told me they had not seen her. I went to look for her from her (my wife’s) relative. They said they

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did not see her. Her relative inquired from me if there was a quarrel between me my wife. I told
them there was no quarrel between us. It was when I returned from our hometown and went to
Imodi-Mosan that I went to report to the police at the police station that I did not see my wife. That
was the time they arrested me”.
Achike JSC concurring with the leading judgment also held “I myself find the maze of
circumstantial evidence relied upon by the trial Judge and confirmed by the lower court
overwhelming. If believed, as they were in fact accepted and believed by the trial Judge. I would
without any hesitation hold that they were positive and irresistible to establish appellant’s guilt in
relation to the murder of the deceased. I find the evidence of PW3 and PW4 regarding the contents
of appellant’s luggage that he was carrying which included the deceased’s pair of slippers and the
clothes that she wore that morning during the appellant’s brief stop to drink water at his request at
the residence of PW3 and PW4, having put down his luggage as well as the appellant’s unsolicited
and voluntary narration to PW3 and PW4 that his deceased wife was troublesome and that they
had quarrelled on the pregnancy she was carrying which he said was not his, sufficiently telling,
positive and irresistible to the inference of the guilt of the appellant. I am unable to discover any
other co-existing circumstances, which weakened or reduced the effect of the irresistibility of the
circumstantial evidence placed before the lower court by the prosecution. In the result, I would
resolve issue 1 against the appellant.”

SECTION 7, FACTS NECESSARY TO EXPLAIN OR INTRODUCE RELEVANT FACTS

OR FACTS IN ISSUE.
It provides that 7, Facts
(1) necessary to explain or introduce a fact in issue or relevant fact;
(b) which support or rebut an inference suggested by a fact in issue or relevant fact;
(c) which establish the identity of anything or person whose identity is relevant:
(d) which fix the time or place at which any fact in issue or relevant fact happened: or
(e) which show the relation of parties by whom any such fact was transacted, are relevant in so far
as they are necessary for that purpose.
SECTION 7 admits facts which are necessary to explain or introduce facts in issue or relevant
facts such as place, name, date, identity of parties and relation of parties. Also, facts which supports
or rebuts an inference suggesting that facts in issue or relevant facts are admissible. Examples may
include affidavits, passports etc. They are preliminary or introductory facts.

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SECTION 8, THINGS SAID OR DONE BY CONSPIRATOR IN REFERENCE TO

COMMON INTENTION.
(1) Where there is reasonable ground to believe that two or more persons have conspired together
to commit an offence or an actionable wrong, anything said, done or written by any one of such
persons in execution or furtherance of their common intention, after the time when such intention
was first entertained by one of them, is a relevant fact as against each of the persons believed to
be so conspiring, for the purpose of proving the existence of the conspiracy as well as for the
purpose of showing that any such person was a party to it.
(2) Notwithstanding subsection (I) of this section, statements made by individual conspirators as
to measures taken in the execution or furtherance of such common intention are not deemed to be
relevant as such as against any conspirator, except those by whom or in whose presence such
statements are made.
(3) Evidence of acts or statements deemed to be relevant under this section may not be given until
the court is satisfied that, apart from them, there are prima facie grounds for believing the
existence of the conspiracy to which they relate.
s8 provides for admissibility of acts and/or statements of a conspirator as evidence against co-
conspirators provided that there is prima facie evidence of conspiracy or common tort/wrong. In
other words, this section applies to civil and criminal matters alike. That’s why it talks about
evidence of conspiracy or common tort. E.g. joint tortfeasors civil law but in criminal law they’re
called conspirators.
There are 2 categories of statements that are admissible under this section:
1. Statements or acts done by any of the conspirators when the intention to commit
crime or actionable wrong was being conceived subsection 2 only against the maker,
see Emeka v The State 1998 7 NWLR 559 556 3 In the case the appellant had been led to
a herbalist who requested for human eyes in order to make him rich. He took a prostitute
(the deceased) to a room, poisoned her drink, killed her and used screw driver to gouge out
her eyes. He claimed the two co-accused held her down while he plucked her eyes but they
denied it. He alone was convicted and he has appealed that he shouldn’t be convicted since
others were acquitted. SC per Belgore JSC dismissed the appeal holding that “the matter
before the trial court is not as difficult as the issues formulated seem to indicate. Did any
act of the appellant contribute to the death of the deceased? The voluntary statement of the
appellant clearly showed how he procured the tranquilizer and how he dropped the potent
tablets into Salamatu’s drink. It is his voluntary statement that seems to incriminate others
as those holding down the deceased and using screwdriver to gouge out her eyes. The
appellant’s statements clearly show he was at least an active participant in the killing of
the deceased. It does not matter in law who did what, what is important is the common
purpose. The desire to have the deceased eyes gouged out after stupefying her is grievous
enough and could lead to death which is what happened in this case. The appellant fulfilled
his desire: he had the human eyes and he was responsible for administering the tranquilizer
on the deceased. Whether he it was that removed the eyes is immaterial. What is certain is

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that the appellant alone entered the room with the deceased. He procured the tranquilizer
and left the room after obtaining the eyes he wanted. R v Nwobiko & Ors (1958) 4 FSC1.
The confession of the appellant is against him and his incrimination of the co-accused,
unless corroborated by other evidence, is not against them.”

Also, in Anthony Enahoro v The State 1965 NMLR 265 CONTRAST BOTH CASES.
Offence of planning to overthrow the legitimate Tafawa Balewa administration, one of the
accused persons gave details on how they were going to do it implicating Enahoro,
Awolowo and some others, serving as evidence of conspiracy and the court accepted as
evidence of conspiracy. (O. was charged with conspiracy with others to commit treason.
O was assigned a responsibility. He subscribed to the oath but declined his role. He did
not report to the police. O was a prosecution witness and it was contended that he was an
accomplice. The Supreme Court held that O might have been guilty of an offence under a
different section of the code for failure to reveal the plot, but this offence is a separate and
distinct offence from the conspiracy charged. Accordingly, O is not an accomplice. Copied
from NOUN material)

Ubierho v The State 2005 All Nations WLR 254 814 814 Katsina-Alu JSC delivering the
leading judgement “Now the short facts of the case as related by the prosecution witnesses
are these. PW1 Rowland Uwarah was the son of the deceased and was living in Warri at
the time of the incident. He told the court that he was informed that his mother who had a
hunchback, was missing. He made a fruitless search for her. Thereafter, on enquiry, he was
informed that Okpako Ebe and Isaac Osiki (both deceased) had been seen in their
compound. He went to their compound but could not see them. Subsequently, he reported
to the police which led to their arrest and the arrest of one Anthony Oboh (3rd accused) by
PW3 the investigating police officer. The arrested suspects then led the police to the bush
where the corpse of the deceased was found. PW1 said he identified his mother’s corpse.
He testified that he observed that his mother’s hunchback had been removed. PW2 Joshua
Kubi, a native doctor testified that he was consulted by four boys who wanted medicine to
promote their trade and to protect them from witches and wizards. He further told the court
that he saw a bag containing meat which the 3rd accused put inside a hole outside his house.
He disclosed that he was arrested by the police who took him and the 3rd accused to 3rd
accused person’s compound where the piece of meat buried in the ground was recovered.
PW3, the investigating police officer, confirmed that the PW2 and the 3rd accused took
him to where the hunchback was buried. He recovered it and sent it to the Forensic
Laboratory, Oshodi for analysis and report. He testified that 1st and 3rd accused persons
later took him to a bush where he recovered the corpse of the deceased and took it to the
General Hospital, Warri where PW4 carried out post mortem examination on it. He said he
later arrested the 4th accused, appellant herein, who volunteered a statement in pidgin
English which he recorded in pidgin English. The said statement was received in evidence
as exhibit K.

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PW4, Dr. Macaulay Azebokhai confirmed that he performed post mortem examination on
the corpse of the deceased after it had been identified to him by PW1. The corpse, he said,
was in a decomposed state. He added that he saw no hunchback.

In his defence, the 4th accused, Ozana Ubierho denied that he killed the deceased. He also
denied making exhibit K.

As I have earlier indicated, the question that calls for resolution is whether the prosecution
proved its case against the appellant beyond reasonable doubt. The case for the prosecution,
as developed at the trial, depended entirely on exhibit K, the statement the appellant gave
to the police. It was the basis of the proceedings against the appellant. Exhibit K, it must
be noted, was tendered without objection from the defence. Exhibit K is without doubt, the
evidence supplied by the appellant himself, that linked him with the commission of the
offence with which he was charged. Exhibit K reads in part as follows:
” … Anthony come tell me say Okpako tell am say one woman got hunch back for Ekrota
village. He come tell me say when he drop me finish, he got check am for Ekrota when
I de come from court, naim Anthony see me, he come tell me say he don see the woman
say since all these days, he no say such person de Ekrota. Anthony come ask me say which
solution we go take get the woman He come tell me say them Joshua Aweyu, Isaac Osiki
and Albert Obadere them go come today 12/7/95 come perform Oracle from one man take
call the woman from her house for afternoon of that day, the boys them come. Them come
got meet the man wey won do the Oracle for them for Ukpeibheie but them no meet the
man for house. Them come meet me for my house say them no see the man say them won
go now. When them won go them come tell me, Ikpako and Anthony say make we find
one way take kill the woman wey de Ekrota say them de go Oto-Ido go draw rain. Say if
the rain de fall make we go kill the woman. For evening of 14/7/85 when the rain de fall,
we come go the woman house. The woman name na Miemie. When we reach the woman
house, Okpako Ebe come climb the house from backyard come enter house. When we enter
the house, the woman de sleep. Anthony come hold the neck, Okpako come hold the leg
them come carry am go outside. Anthony come tie rope for the woman neck, I come hold
the hand we come carry am go bush. When we reach where we won kill the woman,
Okpako come hold the neck come carry am up raise am up take neck ground then the
woman come die. Anthony come de cut the woman hunch back with cutlass wey Anthony
bring. As Anthony de cut the hunch back, he no fit cut an finish naim Okpako come take
the cutlass from Anthony come cut the woman comout. When them cut am finish, Anthony
come take left hand carry the hunch back put for paper bag before he come put am inside
bag wey Okpako bring. I come carry one slippass, Okpako carry the cutlass and Anthony
come carry the bag wey the hunch back de. I come de front, Okpako follow me and
Anthony de back. Anthony come talk say he nor go use the cutlass again say make Okpako
give am the cutlass then he come throw way the cutlass for inside bush. Na Anthony fit
show where the cutlass de. We come carry the hunch back go Udu road go give them
Joshua Aweyu alias Shegbelegbe, Isaac Osiki and Albert Opadere …”,

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“From the foregoing, it can be seen clearly that exhibit K is a free and voluntary confession.
It is direct and positive. The evidence of PW 1, PW2 and PW3 shows plainly that it was
true.

One more point. It has been contended for the appellant that it was not proved that it was
the act of the appellant that caused the death of the deceased. It was further said that in
murder cases, the burden is not discharged unless the prosecution established not only the
cause of death, but also that the act of the appellant caused the death of the deceased.

The evidence before the trial court shows clearly that there was a common intention to
cause death to the deceased Miemie Uwarah. It must be observed here that the appellant,
in exhibit K stated the part he played in this dastardly act. He said:
“Anthony come tie rope for the woman neck, I come hold the hand we come carry am go
bush. When we reach where we wan kill the woman … We come carry the hunch back to
Udu road …”

This court has held that when two or more persons form a common intention to prosecute
an unlawful purpose in conjunction with one another, and in the prosecution of such
purpose, an offence is committed of such a nature that its commission was a probable
consequence of the prosecution of such purpose, each of them is deemed to have committed
the offence; See Muonwem v. The Queen (1963) 1 All NLR 95; Ofor v. The Queen (1955)
15 WACA 4.

In the English case of Rex v. Grant and Gilbert (1954) 38, Cr. App. R. 107 it was held that
if several persons embark on an enterprise to commit a felony and have also the
preconceived common intention to use violence of any degree, if necessary for the purpose
of overcoming resistance, and death results from such violence, all are guilty of murder.
In Rex v. Betts and Ridley 22 Cr. App. R. 147 it was held that in the case of a common
design to commit robbery with violence, if one prisoner causes death while another is
present aiding and abetting the felony, as a principal in the second degree, both are guilty
of murder.

In my judgment, the prosecution has proved the case against the appellant beyond
reasonable doubt. In the result this appeal fails and is dismissed. The appellant’s
conviction and sentence are hereby affirmed.”

Gbenga Osho v The State 2012 8 NWLR 1302 243 276. MOHAMMED LAWAL
GARBA, J.C.A. (Delivering the Leading Judgment): The Applicant, one Sunday Awe and
other person at large were arraigned, charged and tried for offences of conspiracy and
armed robbery punishable under Sections 97(1) and 298(c) of the Penal code respectively
before the High court of Kogi state. At the close of the case by both the prosecution and
the defence, the Attorney General of Kogi State withdrew the charges against Sunday Awe,
through the prosecuting counsel who informed the High court of the directive to do so. The

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learned counsel who appeared for the two accused persons at the trial did not object to the
withdrawal of the charges and so the High court terminated the case against Sunday Awe
and struck out his name from the case.

The High Court in its judgment delivered on the 2/7/09 found the Appellant guilty of the
offences charged and convicted him accordingly.

He was sentenced to a term of three (3) years imprisonment without the option of fine for
the offence of conspiracy and 4 years for armed robbery, the sentences to run concurrently.
Being dissatisfied with the conviction, the Appellant caused a notice of appeal dated the
29th August, 2009 to be filed on the 1/9/09 against the judgment. Because there is a
preliminary objection on all the four (4) grounds of appeal contained on the said notice of
appeal, it is expedient to set them as they appeal thereon. They are as follows: -

“GROUND 1: The learned trial Judge erred in law by convicting the Appellant for the
offence of conspiracy when he had earlier discharged the co-accused of the same offence.

“This is what the High Court had said in its judgment, particularly at page 53 of the record
of appeal: - “This case is mainly based on the confessional statement of the accused person
and the evidence of PW1 who is the investigating police officer in this case,” and then
concluded at page 55 of the record that: - “I therefore agree with the submission of learned
Counsel for prosecution that the court can convict on the confessional statement of the
accused person Alone. I hereby resolve issue 2 against the accused person and hold that
the prosecution has proved its case beyond reasonable doubt against the accused person.”
Put in brief, the High Court used and relied on the confessional statement of the Appellant
and the evidence of PW1 to convict him for the offence of conspiracy.

The facts disclosed are consistent with and made the Appellant’s confessional statement
true to warrant or ground the conviction of the Appellant for the offence of conspiracy.
For that reason, my finding on the issue is that the High Court was right to have convicted
the Appellant for the offence of conspiracy even though the charge against Sunday Awe
was withdrawn and terminated.”

2. Statements made as to measures taken. Such statements will be admissible against the
maker of the statements or co-conspirators in whose presence such statements were made,
see R v Blake & Tye 1844 6 QB 126, 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. If the statement is to favour only the
maker then it’ll not be binding on the others. This was about importation of goods avoiding
payment of the necessary fees. See also Balogun v COP 1953 12 NLR 148.

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18/02/2020 Prof Amusa

OTHER TYPES OF RELEVANT FACTS COTND

WHEN FACTS NOT OTHERWISE RELEVANT BECOME RELEVANT

s9. Facts not otherwise relevant are relevant if-
(a) they are inconsistent with any fact in issue or relevant fact; and
(b) by themselves or in connection with other facts they make the existence or nonexistence of any
fact in issue or relevant fact probable or improbable.
Section 9 EA: facts though not relevant may become relevant if they are inconsistent with the fact
in issue or if by themselves or in connection with other facts make the existence of facts in issue
probable or improbable.
Anagbado v Anagbado 1992 1 NWLR 216 207. The H petitioned for divorce about his W insulting
him with his deformity of not being able as a man and being cruel and irretrievable breakdown of
their marriage. The W argued that they’ve had 6 children within 12 years. This became material
in issue of divorce, they became relevant. Per Adio JCA delivering the leading judgment “Prima
facie, one might be tempted to ask what the fact that a couple had six children within a period of
twelve years or the fact that they were having sexual intercourse regularly within the same period
had to do with the question whether one of them had been cruel to the other. The provision of
section 12(a) of the Evidence Act is that facts not otherwise relevant are relevant if they are
inconsistent with any fact in issue or relevant fact and under section 12(b) of the Act, facts not
otherwise relevant are relevant if by themselves or in connection with other facts they make the
existence or non-existence of any fact in issue or relevant fact probable or improbable. The fact of
the respondent having a child for the appellant practically every other year for a period of twelve
years and of the fact that even on the 6th October, 1985, the appellant had sexual intercourse with
the respondent, particularly when virtually all the allegations concerning cruelty made against
the respondent related to the incident which took place before October, 1985, were inconsistent
with the averment that the respondent for the most part of the marriage had behaved in such a that
the petitioner could not reasonably be expected to live with the respondent or that the marriage
had irretrievably broken down. If the situation was so bad in the matrimonial home that the
appellant could not reasonably be expected to live with the respondent, the appellant could not
have been putting the respondent in family way every other year for a period of twelve years. The
learned trial judge was, therefore, right in coming to the conclusion that the appellant failed to
prove cruelty.”
See also Akingbade v Elemosho, in the case of tittle to land, declaration of title to land and the
plaintiff was allowed to tender the deed of conveyance that he executed in favour of other
purchasers on adjoining lands in an attempt to prove ownership of that particular piece of land in
dispute. They thus became relevant and was admitted by the court in proving the case.

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The intendment of Section 9 is that a fact can become relevant if it’ll help to prove the facts in
issue or a case. Note that inadmissible evidence would not be rendered admissible by this Section
though. If they do not have connection with the main fact, they would be rejected-Ahmadu v Ngeri.

21/02/2020 Prof Amusa

CERTAIN FACTS RELEVANT IN PROCEEDINGS FOR DAMAGES-
s10. In proceedings in which damages are claimed, any fact which will enable the court to
determine the amount of damages which ought to be awarded is relevant.
Section 10 certain facts relevant in claim for damages.

FACTS SHOWING EXISTENCE OF STATE OF MIND, BODY OR BODILY FEELING-

s11. (1) Facts showing the existence of-
(a) any state of mind such as intention. knowledge, good faith, negligence, rashness, ill-will or
goodwill towards any particular person: or
(b) any state of body or bodily feeling are relevant when the existence of any such state of mind or
body or bodily feeling is in issue or relevant.
(2) A fact relevant as showing the existence of a relevant state of mind must show that the state of
mind exists, not generally, but in reference to the particular matter in question.
Section 11 Facts showing state of mind, body or bodily feeling: Union Bank of Nigeria v Idrisu
1997 7 NWLR 609 105 He took a loan and used his property as collateral without redeeming it
and the bank wanted to sell the property, he claimed that the mortgage was illegal but he had in
fact acted otherwise as was proved through his statement of account which he had been checking
regularly. He had regularly been checking his account, see also S 13

SIMILAR FACTS EVIDENCE (SECTION 12)

Facts bearing on question whether act was accidental or intentional:
s12. When there is a question whether an act was accidental or intentional, or done with a
particular knowledge or intention or to rebut any defence that may otherwise be open to the
defendant, the fact that such act formed part of a series of similar occurrences, in each of which
the person doing the act was concerned, is relevant.
Similar Facts Evidence (section 12): this means efforts to prove facts in issue by proving the
existence or occurrence of other similar facts. The general rule is that similar facts evidence is not

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admissible. Every case must be proved on its own merit. The fact that someone has been convicted
of stealing doesn’t mean that when a case of stealing is reported he’s likely to be the thief. That
will be prejudicial to the accused person. It is like giving a dog a bad name in order to hang it. The
general rule was established by Lord Herschel in Makin v AG of New South Wales 1894 AC 59
65. He said “it’s undoubtedly not competent of prosecution to adduce evidence tend to show that
the accused has been guilty of criminal acts other than the one covered by the indictment”. He
added exceptions that if it bears upon the question whether the Act alleged to constitute the crime
charged in the indictment were designed or accidental or to rebut any defence which will be open
to the accused.
In the case, a husband and wife, John and Sarah Makin, were baby farmers (adopting babies) and
a one-month old child died within 2 days after being given to them. They were charged with
murdering the child and burying it in their backyard. During their trial evidence of twelve other
babies found buried in the backyards of their previous residences was offered as evidence. On 9
March 1893 both were convicted and recommended that Sarah Makin be shown mercy. The trial
judge stated a special case for the opinion of a Full Court of the Supreme Court of NSW which
heard the appeal on 23 March and handed down their decision on 30 March 1893, holding that the
similar fact evidence was properly admitted. Immediately following the Full Court's decision,
Stephen J sentenced both John and Sarah Makin to death by hanging. Sarah Makin's sentence was
commuted to life imprisonment before the appeal to the Privy Council.
The appeal to the Privy Council was based on whether this evidence was admissible or whether it
was unfairly prejudicial to their defence
Lord Herschel, held that the evidence, in this case, was admissible, however, as a general rule
evidence of a past similar event should not be admissible unless there are exceptional
circumstances.
“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the
accused has been guilty of criminal acts other than those covered by the indictment, for the purpose
of leading to the conclusion that the accused is a person likely from his criminal conduct or
character to have committed the offence for which he is being tried. On the other hand, the mere
fact that the evidence adduced tends to show the commission of other crimes does not render it
inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon
the question whether the acts alleged to constitute the crime charged in the indictment were
designed or accidental, or to rebut a defence which would otherwise be open to the accused. The
statement of these general principles is easy, but it is obvious that it may often be very difficult to
draw the line and to decide whether a particular piece of evidence is on the one side or the other.”
Evidence of similar facts can only be admitted if it is both relevant and its probative value
outweighed any prejudicial effect.
The couple were charged for murder and they were in the offense of adoption of babies and the
baby died shortly after adoption mysteriously. However, the fact that something earlier done seems
to it doesn’t make it similar.

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Section 12 of the EA When there is a question whether an act was accidental or intentional, or
done with a particular knowledge or intention or to rebut any defence that may otherwise be open
to the defendant, the fact that such act formed part of a series of similar occurrences, in each of
which the person doing the act was concerned, is relevant.
Decision in Makin was followed in the following cases R v Ball 1911 AC, 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.
In Thompson v R 1918 AC The defendant was charged with gross indecency against boys. The
defendant denied that he was the offender. Evidence was admitted that on arrest the defendant was
in possession of powder puffs and that a search of his rooms uncovered indecent photographs of
boys. Held: The evidence was admissible on the issue of the identity of the offender. Lord Sumner
stated that while proof of guilt of a particular crime does not arise from proof of a general
disposition to commit that crime, evidence was admissible to prove guilty knowledge or intent or
a system or to rebut an appearance of innocence. However, the prosecution may not credit the
accused with fancy defences in order to rebut them at the outset with some damning piece of
prejudice., Harris v DPP 1952 AC 694.
NB the principle enunciated in Makin case has been an essential component of English common
law evidence as well as S 12 of the EA.
So similar facts evidence has been accepted in the following instances:
1. Common origin: when a fact is of similar origin with the subject matter of the action
before the court, similar fact evidence is admissible see Manchester Brewery v Combs
1901 2 Ch 608. In this case the lady complained that the D sold her a defective beer. She
submitted evidence that two other customers also bought same beer from the same
company and its proven that some other defective beer was already bought from the same
royal manufacturing pot used by the D. See also Akerele v The State 1943 AC 255 261.
The accused was charged with manslaughter and the fact showed the quack doctor had
administered injection which led to the death of the patient and the prosecution was allowed
to present evidence that the D had earlier injected 9 other patients with same ailment and
they died as well.

This principle is also applicable in proving land matters. Where the dispute relates to
ownership or right of occupancy of a piece of land, act of ownership done by one of the
parties over other similar lands in the same locality as the one in dispute is a relevant fact.
See s 35 EA which states that: Acts of possession and enjoyment of land may be evidence:
s35, Acts of possession and enjoyment of land may be evidence of ownership or of a right
of occupancy not only of the particular piece or quantity of land with reference to which
such acts are done, but also of other land so situated or connected with it by locality or
similarity that what is true as to the one piece of land is likely to be true of the other piece
of land. See also Olukoga v Fatunde 1996 9 SC NJ 1, It was common ground that both

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the appellants and the vendors of the respondent claimed that they were descendants of one
woman, called Jewunola. However, the appellants contended that the radical title to the
whole of the land in dispute, which they described as “Owuto land”, was in Jewunola and
that they were members of Jewunola family. The vendors of the land in dispute to the
predecessors of the respondent alleged that they belonged to Isiba family and that the land
in dispute belonged to Asajon Kuyinu who was the husband of Jewunola and the father of
Isiba. It was the further contention of the appellants that Kujinu’s wife was a daughter of
Jewunola. He was, therefore, a son-in-law of Jewunola and not her husband.

The parties led traditional evidence and there were allegations by both parties of acts of
possession and of ownership. There was also evidence that a strip of land, which used to
form part of the land in dispute, was at a time acquired by the Government. The dispute
between Jewunola family and Isiba family on the payment of compensation to the
claimants was dealt with by the Lagos High Court on the application of the Chief Secretary
to the Government (Suit No. 1/84/55). In his judgment, Exhibit “P5”, Taylor J, rejected
the claim of the Isiba family and upheld that of Jewunola family. There was a direction in
the judgment that wide publicity in the newspaper should be given to the judgment to
enable other descendants of Jewunola to become aware so that all descendants of Jewunola,
including those claiming their descent to her through Isiba might be paid the compensation.
Consequently, one Akide, who was said to belong to Isiba family, filed a statement of
descent, exhibits “P14” and “P15”, tracing their (Isiba) ancestry to Jewunola.
Subsequently, Taylor, J (as he then was) gave the second judgment (Exhibit “P13”) and
ordered that the compensation money be paid, for the aforesaid strip of land required by
the Government, to the descendants of Jewunola, including those who had traced their
descent to her through Isiba. The SC dismissed the appeal with costs per Belgore JSC
held “It must also be pointed out that the case No. 1/84/1955 (supra) relates to
compensation on compulsory acquisition, it has nothing to do with title as in this case and
the attempt to weave the matter round res judicata cannot in this case succeed.” See also
Ahmadu v Ngeri 2010 43 WRN 52 103.

2. Knowledge: in case where proof of knowledge is an essential ingredient of a crime, similar

facts evidence is relevant and admissible. See R v Adeniji 1947 3 WACA 185, in this case
the appellant was charged with the offence of being in possession of moulds for minting
coins under the Criminal Code. The Court held that the evidence of previous uttering of
counterfeit coins by him was admissible in order to establish guilty knowledge. Ogbeide
v COP 1971 UILR (University of Ife Law Report). In the case, he issued a bounced cheque
and he claimed he didn’t know that he didn’t have enough money in the account but it’s
shown that he had earlier issued returned cheques to 3 other customers and should know.
In 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.

In the case of receiving stolen property, the guilt of the accused may be inferred by
evidence of similar facts by showing:

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a. That other property has been found in his possession within the period of 12 months
preceding the date of the offence charged or
b. Within 5 years preceding the date of the offence charged, he had been convicted of
any offence involving fraud or dishonesty see S 36 EA

S36: EVIDENCE OF SCIENTER UPON CHARGE OF RECEIVING STOLEN

PROPERTY:

36. (1) Whenever any person is being proceeded against for receiving any property,
knowing it to have been stolen or for having in his possession stolen property, for the
purpose of proving guilty knowledge, there may be given in evidence at any stage of the
proceeding-
(a) the fact that other property stolen within the period of 12 months preceding the date of
the offence charged was found or had been in his possession: and
(b) the fact that within the 5 years preceding the date of the offence charged he was
convicted of any offence involving fraud or dishonesty.

(2) The fact mentioned in subsection (1)(b) of this section may not be proved unless-
(a) 7 days’ notice in writing has been given to the offender that proof of such previous
conviction is intended to be given: and
(b) evidence has been given that the property in respect of which the offender is being tried
was found or had been in his possession.

3. System or Pattern of Conduct, similar fact evidence is relevant to show the pattern of
conduct or system designed to commit a crime or any wrongful act R v Smith 1915, The
defendant was accused of murdering his wife, Bessie Munday, who was found dead at
home in her bath. Evidence showed that the accused two previous wives died in their baths
too under similar circumstances shortly after insurance that the accused was to benefit
financially from. The court held the evidence admissible and convicted the accused who
was later executed by hanging in 1916. In Hales v Kerr 1908 2 KB 67, the court heard
evidence that individuals other than the plaintiff had contracted infectious diseases after
being shaven by a barber who had a practice of using razors and appliances that were dirty
and unsanitary. Channell J held: “It is not legitimate to charge a man with an act of
negligence on a day in October and to ask a jury to infer that he was negligent on every
day in September… But when the issue is that the defendant pursues a course of conduct
which is dangerous to his neighbours, it is legitimate to show that his conduct has been a
source of danger on other occasions, and it is a legitimate inference that, having caused
injury on those occasions, it has caused injury in the plaintiff’s case also”

In Smith it’s similar to Makin but the accused usually gets married and insured the wife
who ends up dying in mysterious fashion, it was admitted that he’s previously married to
2 persons who died while taking their baths just as the present one. In Hales someone
claimed to have contacted ring worm when he went to barb his hair and also produced 2

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other customers from the shop that contacted ring worm from the shop and its admitted
that the owner fails to sterilize his barbing tools and thus liable.

4. Proof of Identity, similar facts evidence will be relevant and admissible to prove the
identity of the accused as the perpetrator of the crime. Situations in which this may
admissible is very rare. To prove identity of the accused, there must be some abnormality
which is peculiar to the accused and very glaring as if the accused carried on his body some
physical peculiarity. It has to be such that it has to be no other person than the accused that
would have committed the crime because of the uniqueness or peculiarity. This rule has
been invoked in curious cases of murder and sexual offences. R v Straffen 1952 2 QB 11,
concerned the murder of a young girl without any effort to conceal the body. Evidence was
admitted that the accused had escaped for two hours from a nearby prison where he was
being held for killing two young girls in the same manner as the murder of the subject of
the case.

EXISTENCE OF COURSE OF BUSINESS WHEN RELEVANT-

s13. When there is a question whether a particular act was done, the existence of any course of
business, according to which it naturally would have been done, is a relevant fact.

Note that, court has the discretion to accept or reject any relevant fact. The Court may reject a
relevant fact if they are too remote or not material to the fact in issue or if it’ll be prejudicial to the
accused. See S 1 (a) EA 2011.
S1: Evidence may be given of facts in issue and relevant facts:
s1. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact
in issue and of such other facts as are hereafter declared to be relevant, and of no others
Provided that-
(a) the court may exclude evidence of facts which though relevant or deemed to be relevant to the
issue, appears to it to be too remote to be material in all the circumstances of the case;
See also Noor Muhammed v R 1949 AC 182. He was accused of murdering the victim based on
another evidence that he had previously murdered his wife. Per Lord Du Parcq “(1.) After
hearing the arguments of counsel for the appellant and for the Crown, their Lordships announced
that they would humbly advise His Majesty that this appeal should be allowed and the conviction
of the appellant quashed and would state their reasons for tendering this advice at a later date.
Those reasons are set out in this judgment.
(2.) The appellant was tried before the Supreme Court of British Guiana on a charge of murdering
a woman commonly known, and referred to during the trial, as Ayesha. The jury found him guilty
and he was sentenced to death. Evidence was admitted at the trial to which objection was taken
by the appellant's counsel on the ground that it tended to show that the appellant had murdered

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another woman, his wife, Gooriah. It, was said on behalf of the appellant that the evidence ought
to be excluded as being prejudicial to him and irrelevant. For the Crown it was contended, on
grounds which it will be necessary to state later in this judgment, that the circumstances attending
the two deaths made evidence concerning the earlier of them relevant to the charge. It was
properly conceded at their Lordships Board on behalf of the Crown that, if the evidence were
found to have been wrongly admitted, it would follow, according to the settled principles by which
their Lordships are guided in criminal cases, that the appeal must be allowed.
(3.) The evidence which related directly to the charge of murdering Ayesha may be summarised
as follows. The appellant's wife Gooriah died on 17 May 1944. At some time in that year Ayesha
had left her husband and gone to live with him. They lived together as man and wife, and there
was evidence that in the year 1945 they went through a ceremony of marriage according to the
rites of the Mohammedan religion, although Ayesha's husband was still living. After the first few
weeks of their union, their life together had not been happy. It was said that the appellant had
often beaten Ayesha and had sometimes driven her from his house. On one occasion she had lived
apart from him for two weeks, though she seems to have continued to feel affection for him, and to
have been anxious to return to him. The earlier quarrels were due to the fact that the appellant
suspected and accused her of infidelity. Later, he made a different charge against her. On a day
in August 1946, a neighbour named Mildred James, who employed Ayesha to do some dress-
making, witnessed an assault on her by the appellant. She tried to rescue Ayesha, whereupon the
appellant said, according to the witness, "Through this woman people got to say I kill my first wife.
She must go away." Ayesha refused to go, and the appellant was alleged to have threatened her
with the words, "If you can't go alive you got to go dead." There was also evidence of a quarrel
and a threat by the appellant to kill Ayesha on the night of 16 September 1946. On the morning of
the following day, Ayesha died of poisoning by potassium cyanide.”
NB: in proving relevant facts, you can use (Part II-Relevancy) i.e. ss 4,5,6,7,8,9,10,11, 12 or 13
but you must be careful to use the proper one because they sometimes overlap.

ILLEGALLY OR IMPROPERLY OBTAINED EVIDENCE

Section 14 of the Evidence Act, 2011, that provides
14. Discretion to exclude improperly obtained evidence:
Evidence obtained -
a) Improperly or in contravention of a law; or
b) In consequence of an impropriety or of a contravention of a law.
Shall be admissible unless the Court is of the opinion that the desirability of admitting the evidence
is outweighed by the undesirability of admitting evidence that has been obtained in the manner in
which the evidence was obtained.
In Musa Sadau v State, evidence had been obtained in a manner which patently violated the
statutory rights of the accused under the Criminal Procedure Act (CPA) on search of premises.

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Notwithstanding the violation of the CPA, the court admitted the exhibits recovered during the
search on the basis of relevancy. To arrive at the decisions, the SC relied extensively on the case
of Karuma v R where the PC endorsed the admissibility of illegally obtained evidence thus: “…the
test to be applied in considering whether evidence is admissible is whether it is relevant to the
matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was
obtained.”
The position of the Nigerian court is summed up by Justice Barka, J.C.A. in Daniel Okafor v.
The State1 as follows: “evidence which is relevant whether in civil or criminal trials is not excluded
merely because it was illegally obtained. This has been the position of the law expressed by the
Supreme Court and the Court of Appeal. The concern of the court is whether the evidence is
relevant, and it is not of concern of the court how the evidence was obtained. See the cases of Torti
vs. Ukpabi (1984) 1 SCNLR 214; Sadau vs. The State (1968) 1 All NLR 1242”
Akingbola Johnson v Federal Republic of Nigeria (2011) LPELR-19746(CA): per Bada JCA
“The law is well settled that there is no general rule of law in civil as well as in criminal cases that
evidence which is relevant is excluded merely by the way in which it has been obtained. This is
subject in criminal cases to the discretion of a trial Judge "to set aside the essentials of Justice
above the technical rule if the strict application of the later would operate unfairly against the
Accused." This means that the Judge can, where the interests of Justice demand it, exclude
evidence which otherwise would be relevant considering the circumstances of its discovery and
production. See the case of Sadau & Another vs. State (Supra). In this appeal there is evidence on
record that when the Accused/Appellant was searched, the sum of (=N=10,000.00) Ten Thousand
Naira in =N=500.00 denomination was recovered from his breast pocket. It was admitted in
evidence. My humble view here is that the admission of the (=N=10,000.00) Ten Thousand Naira
in evidence did not in any way operate unfairly against the Appellant who not only admitted
receiving the money but went ahead to base his defence on it. In the case of Sadau & Another vs.
State (supra) it was held among others that: - "If the proper procedure was not followed, an
irregularity may or may not have occurred depending on the facts or circumstances, but in any
case, the consequence of an irregularity will attach to the persons executing the warrant and not to
the evidence which is thereby obtained. In this case the properties recovered in the house of the
Appellant were the subject matter of the charge against him and it will be useless to dispute their
relevance to the charge which was being tried... “Consequent upon the foregoing it is my view that
the said (=N= 10,000.00) Ten Thousand Naira was properly admitted in evidence.”
In sum, The Evidence Act, 2011, expressly endorses the admissibility of improperly obtained
evidence in section 14. This is however subject to the discretion of the court, to weigh the
desirability of admitting same and decide accordingly.
Section 15 outlines the matters that a court is to take into account while considering the desirability
under section 14.

1
(2014) LPELR-24477(CA)
2
Ibid pages 22 Para B.

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S15. Matters a court shall take into account under section 14

For the purposes of section 14, the matters that the court shall take into account include-
(a) the probative value of the evidence;
(b) the importance of the evidence in the proceeding;
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-
matter of the proceeding;
(d) the gravity of the impropriety or contravention;
(c) whether the impropriety or contravention was deliberate or reckless;
(f) whether any other proceeding (whether or not in a court) has been or is likely to be taken in
relation to the impropriety or contravention; and
(g) the difficulty, if any, of obtaining the evidence without impropriety or contravention of law.
Section 30 is a codification of the common law rules on admissibility of illegally obtained
evidence, especially with respect to discoveries made or evidence obtained as a result of
information contained in a confession which is not admissible.
S30. Facts discovered in consequence of information given by defendant.
Where information is received from a person who is accused of an offence, whether such person
is in custody or not, and as a consequence of such information any fact is discovered, the discovery
of that fact, together with evidence that such discovery was made in consequence of the
information received from the defendant may be given in evidence where such information itself
would not be admissible in evidence.
This means that even where the info got from the accused whether in custody or not is not
admissible, the evidence that the info will lead to, will be admissible. Thus, the inadmissibility of
the of the info does not altogether render the evidence or relevant fact discovered through it
inadmissible.

ADMISSION
Section 20: Admission Defined:
20. An admission is a statement oral or documentary or conduct which suggests any inference as
to any fact in issue or relevant fact, and which is made by any of the persons, and in the
circumstances, mentioned in this Act.
An admission is usually a statement or conduct which is adverse to the interest of the maker in
respect of a fact in issue. In other words, an admission is a concession of the truth of a fact in issue

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because a person will not ordinarily make a declaration against himself unless such a declaration
is true. An admission is an acceptable way of proving a fact in issue. What is admitted, needs no
further proof.
Note that an admission is always accepted and used against its maker (i.e. the person who made
the admission).
See the statutory definition of admission in Section 20 of the Evidence Act.
Black’s Law Dictionary 8th Edition defines an admission as “a statement made by one of the
parties to an action which amounts to a prior acknowledgment by him that one of the material facts
relevant to the issue is not as he now claims.”
NAS v UBA ltd 2005 All FWLR 824 275 285, admission is an acknowledgement by a party that
one of the material facts relevant to the issues in the proceedings is not as it claims to be. It is not
mere averments in pleadings Per Akintan JSC.

RULES OF ADMISSSION
1. Mere averments in pleadings are no evidence/admissions:
In Nigeria Advertising Services (NAS) v UBA: The dispute culminating into this appeal
emanated from a mortgage transaction under which the 2nd appellant, in consideration of a loan
and overdraft facilities granted by the 1st respondent Bank to the 1st appellant, mortgaged to the
1st respondent Bank his property at No.52, Norman Williams Street, South-West Ikoyi, Lagos. In
default of repayment, the 1st respondent gave to the appellants written notices of its intention to
sell the mortgaged property. On 3/4/89, the 1st respondent gave to the appellants a final notice of
sale and in reaction, the appellants in their reply dated 17/4/89 asked for an extension of 4 weeks
“to produce a better offer” having known that the 1st respondent had got an offer of N1.2 million.
Subsequently, the appellants on 21/4/89, intimated the 1st respondent’s solicitor, that they had got
an offer of N1.3million. Consistent with that, the appellants on 11/5/89 presented to the 1st
respondent a bank draft for N1.3 million as liquidation of the mortgage debt which at the time
stood at N700,395.93. The 1st respondent declined to accept the said bank draft alleging that the
mortgaged property had been sold on 28/4/89.
In consequence of the foregoing, the appellants as plaintiffs by a writ of summons dated 18/10/89
filed in the High Court of Lagos State in suit No. L/2182/89 commenced an action against the 1st
respondent as defendant claiming, inter alia, that the purported sale of the plaintiffs’ property is
null and void and an order to set aside the same. Pleadings were filed and exchanged. In the
statement of defence and amended counterclaim filed by the defendant bank, it denied the
plaintiffs’ claim and counter-claimed for rent and mesne profits as well as the possession of the
mortgaged property.
In the ensuing trial, each party called witnesses to substantiate its case and at the end, the learned
trial Judge, Adeyinka J, in a reserved judgment delivered on 16/12/92, found against the plaintiffs,

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dismissing their claim and entering judgment for possession of the mortgaged property in favour
of the 2nd defendant.
Dissatisfied with the judgment, the plaintiffs as appellants lodged appeal to the Court of Appeal,
Lagos Division. The 2nd respondent who presumably bought the mortgaged property on
application was joined in the suit as an interested party. The Court of Appeal by a unanimous
decision delivered on 2/6/99 dismissed the plaintiffs/appellants’ appeal and affirmed the judgment
of the trial court. Against that decision of the Court of Appeal, the appellants have lodged the
present appeal. Briefs of argument were filed by the appellants and each set of the two respondents
with issues for determination formulated therein.
AKINTAN, J.S.C. (Delivering the Leading Judgment): The plaintiffs merely pleaded in that
paragraph 9 what the 2nd plaintiff was told when he went to present the bank draft in the bank. It
is definitely wrong to hold that the plaintiffs had by that averment admitted both the sale and the
date of sale of the property. An admission, as defined in Black’s Law Dictionary, 6th edition, 1990,
page 47, is a statement made by one of the parties to an action which amounts to a prior
acknowledgment by him that one of the material facts relevant to the issues is not as he now
claims,” The position of the law is that facts admitted require no further evidential proof: See:
Bajoden v. Iromwanimu (1995) 7 NWLR (Pt. 410) 655;Obmiami Brick & Stone Nig. Ltd. v .A.C.B
Ltd. (1992) 3 NWLR (Pt. 229) 260 at 301; and Olagunyi v. Oyeniran (1996) 6 NWLR (Pt. 453)
127 at 143. In the instant case, the plaintiffs’ case was that there was no sale as at the time they
presented the cheque for full settlement of their indebtedness to the bank or if there was infact a
sale, it was fraudulent to sell the mortgaged property for N1.2 million after the bank had been
informed of a higher offer of N1.3 million for the same property. The onus was therefore on the
defence to establish that there was in fact a sale and that the sale was made before the plaintiffs
notified the bank of a higher offer of N1.3 million. In other words, the defence would need to plead
and lead credible evidence in support of the date the sale was made. As has been shown above, the
only witness for the defence failed to satisfy this requirement.
The law is settled that an averment in pleadings is no evidence and cannot be so construed. They
are mainly to set out the evidence that a party is likely to present so that the other side would not
be caught unaware or unprepared. The averments in pleadings must be proved by evidence except,
however, where they are admitted by the other party. See Akanmu v. Adigun (1993) 7 NWLR (Pt.
304) 218 at 231; Honika Sawmill Nig Ltd. v. Hoff (1994) 2 NWLR (Pt.326) 252 at 260; and
Insurance Brokers of Nigeria v. A. T.M. Co. Ltd. (1996) 8 NWLR (Pt. 466) 316 at 328. In the
instant case, the defendant had pleaded in paragraph 14 of its statement of defence as follows:
“In reply to paragraph 9 of the statement of claim, the defendant avers that it has sold the mortgage
property, executed a deed of assignment in favour of the purchaser and paid the purchase money
into the plaintiff’s account before the plaintiffs presented a bank draft for N1.3 million for the
liquidation of the mortgaged debt.”
But the defence failed to lead any evidence in support of the above averments pleaded. The only
witness for the defence merely told the court that the property was sold in 1988 and that he could
not remember the month. He said nothing about averments in their pleadings concerning payment

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of the amount realised from the sale of the property into the plaintiffs’ bank account. If that
evidence was given, the entry in the plaintiffs statement of account would have probably confirmed
whether the date the payment was made into the account was before or after the plaintiffs notified
the bank of the higher offer of N1.3 million the plaintiffs received for the property which the bank
now sold for a lesser sum of N1.2 million. The plaintiffs’ allegation of fraud made against the
defendant would have been debunked.
As already declared above, pleadings could not replace evidence. Any pleaded fact which is not
given in evidence is therefore deemed abandoned. The defence therefore failed to controvert all
the very serious allegations levelled against it on the sale of the property. The findings of fact made
by the trial court on the issue are therefore totally erroneous. The court below was also in error
when it affirmed the Judgment premised on those erroneous findings of fact.
The law is settled that this court will only disturb concurrent findings of the lower courts in very
rare instances, such as where there is insufficient evidence to support them or there is glaring
miscarriage of justice clearly shown to have occurred. See Enang v. Adu (1981) 11-12 Sc. 25;
Lokoyi v. Olojo (1983) 8 SC 61 at 68; (1983) 2 SCNLR 127 and Bajoden v. lromwanimu (1995)
7 NWLR (Pt.41O) 655 at 670.
In the instant case, the main dispute before the trial court was whether the sale of the property was
made before the plaintiffs offered to settle the debt owed the bank and if so, whether the sale was
made before or after the plaintiffs notified the 1st respondent of a higher offer for the building.
Although the 1st respondent pleaded the date the sale “was made”, it failed to lead evidence in
support of its pleadings. The trial court therefore failed to hold that the evidence led in support of
the plaintiffs’ case stood uncontroverted. The result was that the plaintiffs’ claim was wrongly
dismissed by the trial court and the counter-claim was wrongly granted by the same trial court.
Similarly, and based on the same reasons, the court below was wrong when it affirmed the
judgment of the trial court by dismissing the appellants’ appeal. There is therefore merit in the
appeal on the appellants’ Issue 1.

2. An admission must be clear, precise and unequivocally express the admitting mind of
the person and not mere rhetoric lacking exactness and firmness:
An admission which bubbles on mere rhetoric, lacking exactness and firmness of purpose does not
qualify as an admission in Law. See Niki Tobi, J.C.A (ahtw) in Coker v Olukoga (1994) NWLR
Pt.329 p.648 at 662. “an admission is a statement oral or written which is made by a party in
proceedings before a Court of Law and which statement may be adverse or detrimental to his
interest of the maker before it qualifies as an admission in law. See section 20 of the EA. An
admission in law must clearly, precisely and unequivocally express the admitting mind of the
person. An admission which bubbles or on mere rhetoric, lacking exactness and firmness of
purpose does not qualify as an admission in Law. A declaratory expression of a vain nature
does not qualify as an admission in Law. Because of the probative value assigned to admissions,
a Court of Law is expected to exercise all the caution and precaution before coming to the
conclusion that a witness has made an admission in evidence or a document contain an admission.”

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In Ogunnaiki v Ojayemi: the main issue was whether the disputed parcel of land was that of the
Respondent’s family or whether it was a communal land as claimed by the Appellant. The
Appellant contended that the R had admitted that it was communal land. The court held that there
was no evidence from which an admission can be inferred. The court defined an admission thus,
Per Kawu JSC “a statement, oral or written (express or implied) which is made by a party to a
civil proceeding and which is adverse to his case. It is admissible as evidence against the maker as
the truth of the fact asserted in the statement.” See also the case of IMB Ltd v Comrade Cycle
Co Ltd (1998) 11 NWLR (Pt.574) 153 which is authority for the view that admission must not be
based on misapprehension of facts.

3. Ignorant admissions or admissions made on the basis of misapprehended facts are

not binding admissions:
In AKPABIO v DUKE (2001) 7 NWLR (Pt.713) 557 at 572 where the court held that it is settled
law that admissions are not estoppel and therefore not conclusive against a party against whom
they are tendered. Such a party always has a right to prove the circumstances or to show that they
were due to erroneous misconception of the law or ignorance of the real facts or other
circumstances which sufficiently explain them. See also Bamiro v S.C.O.A (1941) 7 WACA 150.;
Tsokwa Oil Marketing Co Nig Ltd v Bank of the North Limited (2002) FWLR(Pt.112) 1.
Bamiro v SCOA, the plaintiff had claimed from the D on account of damages to his building by
vibrations during building operations in the D’s premises. Thinking that the operations might have
caused damages to the P’s house, the D had ignorantly written the P that “his house would be
repaired after the completion of our building.” The P however in the suit failed to prove that his
building was actually damaged. He chose to rely on the letter as proof of admission of damages to
his building. Held that the D (without proof by the P of damages sustained) was not liable,
notwithstanding her letter.

4. Silence may amount to an admission under certain circumstances:

See also Hon. Justice Owoade in Admissions and Confessions in Law and Practice of
Evidence in Nigeria (Afe Babalola ed. 2001) pp 49-50. “it would be seen in relation to the
statement in the presence of a party that the only evidence against the other party is his behaviour
in response to the statement so that if such behaviour cannot in the circumstances be said to amount
to an admission, the statement is inadmissible. Thus, if circumstances are such that some
explanation or qualification or denial can reasonably be expected from him, his failure to offer
such makes the statement in his presence admissible. But it is otherwise if the circumstances are
such that a reply cannot be expected e.g. if the statement is made in the party’s presence in legal
proceedings where the formal nature of the occasion prevents him from replying simultaneously
or if it is made by an official by-stander when it is reasonable to ignore or in an upgrading letter in
a personal non-commercial matter. In such cases, the statements are inadmissible.”

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In Bessela v Stern (1877) L.R. 2 C.P.D 265, the plaintiff had sued the Defendant for breach of
promise to marry her. The Plaintiff called her sister as a witness. Her sister’s testimony was that
she heard the Plaintiff saying to the Defendant, ‘‘You know you always promised to marry me and
you don’t keep to your word’’. The Plaintiff’s sister testified that the Defendant failed to offer a
reply to the accusation but instead offered the plaintiff some money in order to lure her away. The
Court held that admission of the existence of the promise could be inferred from the Defendant’s
conduct of keeping quiet and offering Plaintiff money.
In Wiedemann v Walpole (1891) 2 L.R.24 QBD 534, the plaintiff had written some letters to the
Defendant alleging that the Defendant had promised to marry her. The Defendant failed to reply
the letters. In an action for breach of promise to marry, the Plaintiff sought to rely on the
Defendant’s conduct in not replying the letters as an admission of the existence of such promise.
The Court reasoned that the Plaintiff’s letters were social letters which the Defendant was not
obliged to furnish a reply. Bowen L.J held ‘‘silence is not evidence of an admission unless there
are circumstances which render it more reasonably possible that a man would answer the charge
made against him than that he would not’’.
What do you think is the distinction between the case of Bessela v Stern and Wiedemann v
Walpole? Why are the outcomes different? The circumstances are different which can be
inferred from Bowen L. J’s position above. There’s an overt act which created the circumstances
that Bowen L.J. referred to in Stern offering money instead of marrying her but in Weideman,
there was no such thing, he simply did not reply the letter. Such cannot amount to admission as
there are no circumstances that render it more reasonably possible for him to reply.
In the case of Oloko v Oloko (1961) WNLR 101, the Respondent filed a cross-petition for divorce
against the petitioner on the ground of adultery. The respondent had accused the petitioner in the
presence of the police officer of adultery. There was no reply/denial of the allegation of adultery.
It was held that non-denial is sufficient proof of adultery by the Petitioner.

5. Relevancy of Admissions in Civil Cases:

In civil matters, parties can agree or court can infer that parties so agreed that an admission shall
not be given, where that is the case, such admission shall not be relevant but doesn’t affect the
compulsory legal duties of a lawyer.
Section 26: Admissions in civil cases, when relevant:
26. In civil cases no admission is relevant, if it is made either upon an express condition that
evidence of it is not to be given, or in circumstances from which the court can infer that the parties
agreed together that evidence of it should not be given:
Provided that nothing in this section shall be taken to exempt any legal practitioner from giving
evidence of any matter of which he may be compelled to give evidence under section 192.

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6. An admission does not conclusively prove a fact in issue.

The admitting party is at liberty to either adduce or rely on rebutting evidence. The Court is also
empowered to request the adverse party to prove the fact in issue independently of the alleged
admission. See Section 27 and the proviso to Section 123 of the Evidence Act.
Section 27: Admissions not conclusive proof, but may estop:
27. Admissions are not conclusive proof of the matters admitted but they may operate as estoppel
under Part X.
A provision similar to section 27 of the Evidence Act in the repealed Evidence Act was interpreted
by the Supreme Court in EHIDIMHEN v MUSA (2000) 6 SCNJ 325. The Court held that
while evidence may be called in rebuttal of alleged admission, in some cases, the party allegedly
making the admission is estopped/prohibited from offering a rebutting evidence. It is trite Law that
where a party is estopped from asserting a contrary position, such a party is deemed to have
admitted existing facts. There are authorities which support the point that a person will only be
estopped from denying an admission when the admission has made another person to change his
position and it will be unjust to allow the person who made the admission to make a contrary
assertion/declaration. See Insurance Brokers Limited v Atlantic Textiles Limited (1996) 9-10
SCNJ 171; Onamade v A.C.B Limited (1997) 1 SCNJ 65.

WHO CAN MAKE ADMISSIONS?

Section 21: Admission by privies:
21. (1) Statements made by a party to the proceeding or by an agent to any such party, whom
the court regards, in the circumstances of the case, as expressly or impliedly authorised by him
to make them, are admissions.
(2) Statements made by parties to suits, suing or sued in a representative character, are not
admissions unless they were made while the party making them held that character.
(3) Statements made by persons;
(a) who have any proprietary or pecuniary interest in the subject-matter of the proceedings,
and who made the statements in their character of persons so interested: or
(b) from whom the parties to the suit have derived their interest in the subject matter of the
suit, are admissions, if they are made during the continuance of the interest of the person
making the statements.
• Parties to a Suit.
• Agents, Servants and Persons with special relationships with a party.
• Admissions can be made in personal or representative capacity.

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a. Admission by Agents Section 21(1):

Where an agent acts within the scope of authority such an agent can make admissions, which will
bind the principal. See Oyedele v Oyename (1952) LR. 37. In the Oyedele case, after an accident
between the Plaintiff’s vehicle and the Defendant’s vehicle, the Defendant’s driver informed the
plaintiff that his brake failed and consequently had to choose between plunging into the river or
colliding with the plaintiff’s vehicle. He opted for the latter. This was held to be a binding
admission for the purpose of establishing fault and vicarious liability of the driver and owner of
the vehicle respectively.
See also ADISA v EFUYE (1994) 1 NWLR (Pt.318) 75, where the CA held that an admission of
liability for an accident made by a driver of a vehicle will ordinarily not bind the owner of such a
vehicle unless the driver acted as the agent of the vehicle owner. The court held that since the
owner of the vehicle offered to repair the damaged vehicle of the third party, the driver’s admission
was binding on the vehicle owner.
In the Earl of Dumfries Case (1885) 10 P.D. 31, it was held that whilst the Captain/Master of a
vessel involved in a collision with another vessel had authority to make a binding admission,
members of the crew of the vessel lacked such authority.
b. Admission by Lawyer:
Generally, admission by a Counsel is binding on his client. See Okesiji v Lawal (1991) Pt.170
p.661.
In Okonkwo v Kpajie (1992) 2 NWLR Pt.226 p.633 at 655 -656, Nnaemeka-Agu, J.S.C (ahtw)
endorsed this principle thus: “a counsel who is representing his client in a civil case or matter in
litigation has got very wide powers of making admission on his client’s behalf. He is the agent and
mouthpiece of his client in litigation. So, he has implied authority to make admissions on his behalf
during the progress of litigation either for the purposes of dispensing with proof at the trial, where
they are regarded as conclusive or incidental to any of the facts in the case, when they are prima
facie evidence only”.
See also Cappa and D’alberto Limited v Akintilo (2003) FWLR (Pt.160) 1565., where a counsel
offered on behalf of his client in court to pay a specific sum of money as cost of repairs/loss of use
of damaged vehicles. Held that it was an admission of liability which is binding on the client.
Bamiro v SCOA, supra, refer above.
EXCEPTION: AG Fed v AIC ltd, where a counsel acts without authority, the admission made
by him will not bind the principal.
c. Admissions Made in Representative Capacity Section 21(2):
Admission made by a person in a representative capacity is binding on all persons represented by
such a person provided:
• The person making the admission is sued in a representative capacity

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• He must have made the admission in his representative capacity as opposed to making the
admission in his private capacity. See the case of Idesoh v Ordia (1997) 2 SCNJ 175;
Akiniwo v Nsirim (2008) All FWLR (Pt.410) 610.
The case of Ajuwa v Odili (1985) 2 NWLR (Pt.8) 710 at 716 is the authority for the principle that
in a representative action, an admission made by a party to the previous proceedings is binding on
the family or community or class of persons being represented in such proceedings.
Where there are different ruling houses in a Chieftaincy/Obaship dispute, an admission made by
one of the ruling houses is not binding on the other ruling houses. See Military, Governor of
Ondo State v Kolawole (2000) FWLR (Pt.3) 395.
An admission made by a head of family who is sued in such capacity is binding on all the members
of the family. See Joe Iga v Amakiri & Ors (1976) 11 SC 91.

d. Admissions made by predecessors-in-title bind successors in title Section 21 (3) (b):

See Ojeigbe v Okwaranyia (1962) 1 All NLR 605.

e. Admissions made by persons whose position must be proved as against party to suit
Section 22:
Section 22: Admissions by persons whose position must be proved as against party to suit:
22. Statements made by persons whose position or liability it is necessary to prove as against any
party to the suit are admissions if such statements would be relevant as against such persons in
relation to such position or liability in a suit brought by or against them, and if they are made whilst
the person making them occupies such position or is subject to such liability.
Section 22 of the Evidence Act permits the admissibility of admissions made by persons whose
position or liability must be proved as against any party to the suit. According to Aguda, the
provision does not err on the side of clarity. However, the effect of the provision is that where it is
necessary to prove the position or liability of X as against A in a suit between A & B, any statement
made by X would be an admission if [such statement would be relevant as against X had the suit
been brought against him and if he made the statement at a time he occupied such a position on
the subject or liability.
In Oil Field Centre Ltd v Joseph Johnson, the A company was established by the R and a few
other persons. All of them were co-directors. The R was the MD. Shares were allotted to him
payable partly in cash and partly in services rendered pre and post incorporation of the company.
It was agreed that whatever salary was earned by him as MD could be used in defraying the shares
allotted to him. Disputes arose between them some years later resulting in the R travelling down
to Australia. The FGN later acquired the company and paid the directors N8m compensation. The
amount was shared to the exclusion of the R.

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On his return, he petitioned to have the company wound-up. The petition was resisted by the D on
the ground that he was neither a shareholder nor a contributory of the company.
Held: that there were sufficient admissions on the part of the company and other directors to show
that he was a shareholder. The court inferred admission of his shareholding from the various
minutes of meeting of the company where he was referred to as having been allotted with shares,
and his one year’s remuneration to be used to pay for the shares. A witness testified that “No
Johnson no Oil Field.”
Oputa JSC rejecting proof of share certificate or documentary evidence as indispensable in the
matter held that “Evidence can be documentary or oral. It can also be by admission by the opposite
party. In fact, it is a fundamental part of our procedural law that what is admitted (say in
proceedings) by the opposite party is deemed to have been established at the hearing and no further
proof will be proffered. If a company admits directly or consequently that a person is a shareholder
of that company. I do not think it is imperative to offer in addition to that admission documentary
evidence of his shareholding. The issue will be concluded by the company’s admission.”

f. Admissions by persons expressly referred to by party to suit Section 23:

Section 23: Admissions by persons expressly referred to by party to suit:
23. Statements made by persons to whom a party to the suit has expressly referred for information
in reference to a matter in dispute are admissions.
Section 23 of the Evidence Act provides for the admissibility of admissions made by a person to
whom a party to the suit has expressly referred to for information. In other words, admissions made
by referees are binding on persons making the reference.
In William v Innes (1808) 1 Camp 364, the defendants who were executors of a will had referred
the plaintiff to another person for information on the assets of a deceased testator. The referee
supplied the information. It was held that the information supplied amounted to an admission.
See also R v Mallory where the accused who was standing trial for a property offence had referred
the police investigating officer to his wife with the request that the wife should show the officer
where the goods were kept.
Olatunji v Adisa was a case where the defendant’s witness admitted that the land allegedly bought
by the defendant from Odekunle’s family did not belong to the family. Held that this is an
admission which was admissible against the interest of the defendant.

TYPES OF ADMISSION
Admissions may be formal or informal.
Informal admissions are made out of Court.

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Formal admissions are those made in open court or in papers filed in court which are taken as
establishing the facts in issue without further proof.
Section 123 of the Evidence Act deals with formal admissions. Informal admissions consist of
oral and written admissions as well as admissions by conduct. See Section 20 of the Evidence
Act.
Section 123: facts admitted need not be proved:
123. No fact needs to be proved in any civil proceeding which the parties to the proceeding or their
agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any
writing under their hands, or which by any rule or pleading in force at the time they are deemed to
have admitted by their pleadings:
Provided that the court may, in its discretion, require the facts admitted to be proved otherwise
than by such admissions.
In Akinbiyi v Anike (1959) WRNLR p.16, plaintiff sued defendant to recover money allegedly
paid by him on behalf of defendant. Defendant counter-claimed (i.e. counter sued), against the
Plaintiff for detention of her goods. The Defendant tendered an inventory of goods detained by the
Plaintiff without objection. Plaintiff also failed to cross-examine the Defendant on accuracy of the
items and their values. The Court inferred admission of detention of the goods and the value of
the goods from Plaintiff’s failure to cross-examine the Defendant on the accuracy of the inventory.
In Moriarty v London Chatham & Dover Railway Co (1870) LR.5QB 314, the Plaintiff had
procured the services of a witness to perjure (lie on oath) in support of his case which was a claim
for damages on account of injuries sustained in a railway accident. It was held that this was a clear
admission by conduct that his claim was false/weak because no one procures a person to lie on
oath if he/she has a good case.
Informal admissions do not strictly bind the maker and may be explained or contradicted.
The weight of an informal admission depends on the circumstances under which it was made and
these circumstances may also be proved to impeach or enhance its credibility. See Ado Ibrahim
& Co Ltd v Edelstein Nig Ltd (2002) 1 NWLR (Pt.747) 50 at 70 -71.
The case of Awote v Owodunni (1987) 2 NWLR (Pt.57) 367 is the authority for the proposition
that an admission made by a party in a survey plan made before the case or used in previous
proceeding involving such party will consequently be regarded as an admission against his interest
and can be relied upon by the other party in proof of his own case.
Read the following cases
• OMISORE v AREGBESOLA (2015) 15 NWLR (Pt.1482) 205
• APC v INEC (2015) 8 NWLR (Pt.1462) 531
• KAYILI v YILBUK (2015) 7 NWLR (Pt.1457) 26.
• EFET v INEC (2011) 7 NWLR (Pt.1247) 423

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• FRN v IWEKA (2013) 3 NWLR (Pt.1341) 285

CONFESSION
In this discourse the relevant sections of the Evidence Act to bear in mind are sections 28-32 of
the E.A
S.28 E.A. defines confession as:
An admission made at any time by a person charged with a crime, stating or suggesting the
inference that he committed that crime.
Section 29 (1) declares a confession made by a defendant relevant and admissible provided it is
not excluded by the other provisions of S.29 E.A.
Any distinction between confessions and admissions?
You will note the word admission is included in section 28 E.A. The inclusion of the word
admission in the definition of confession raises the controversy on whether there is indeed any
distinction between confessions and admissions. See “The distinction between confessions and
admissions myth or reality? A case for abolition”- Prof. S.A. Adesanya (1970) Nigerian Journal
of Contemporary Law P.1
Compare with: Noakes on Evidence 4th Ed. P.298 where it is contended that the word admission
is synonymous with admission of some facts relevant to the crime whereas confession, is
associated with full admission of some facts relevant to the crime. According to Prof. Noakes,
admission is therefore restricted to incriminating admission of some facts while confession deals
with confession to the entire crime.
Prof. Owoade has also contended that the definition of confession is wide enough to include
incriminating admission falling short of a full confession. Relying on the decision in Balogun &
Ors v. Attorney General of the Federation (1995) 5 NWLR (Pt.345) p.442 and Commissioner of
Customs and Excise v. Harz & Power (1967) 51 Cr. App. R. 123 at 155. He contends that for the
purpose of admitting incriminating admission in evidence, there should be no practical distinctions
between such admissions and full confessions. See “Admissions and Confessions” in Law and
Practice of Evidence in Nigeria (Afe Babalola (ed) p.62
The relevant pronouncement of Lord Reid in the case of Commissioner of Customs and Excise
v Harz cited by Owoade is to the effect that: “There is no jurisdiction in principle for a distinction
between confessions and admissions which fall short of full confessions. It is like saying that a
man induced by a threat may make one or more incriminating admissions. Unless the law is to be
reduced to a mere collection of unrelated rules, there is no distinction between the two cases. On
the contrary, the overriding principle is that it is a fundamental condition of the admissibility in
evidence against any person to a question put to him by a police officer or of any statement made

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by that person that it shall have been voluntary in the sense that it has not been exercised or held
out by a person in Authority or by oppression.”
Notwithstanding the inclusion of admission in the definition of confession fundamental
distinctions exist between admission and confession. For example:
a. while admissions are made in civil cases, confession are made in criminal cases.
b. Further, while it is possible for a party or his agent to make an admission, in confession, only a
party can make confession. An agent or counsel cannot confess for or on behalf of the accused
c. While it is possible to convict an accused person solely on his confession, admission may not
be enough to enter judgment against a defendant in a civil case especially in an action or
declaration of a right.
S.29(1) provides for when a confession is relevant that in any proceedings a confession made by
a defendant is relevant and admissible against him where it relates to any matter in issue before
the court provided such confession has not been excluded by the court in pursuance of this section
S.29 (2) (a) a confession obtained as a result of the oppression of the person who made it is
irrelevant and therefore inadmissible.
S.29 (2) (b) a confession made as result of anything said or done which was likely in the
circumstances existing at the time to render the statement unreliable, the statement will not be
admissible unless the prosecution proves beyond reasonable doubt that the confession
(notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of
this section.
A confession is an admission against interest, consequently, it offers best evidence on the guilt of
the accused. Not surprisingly, police officers find it attractive in their bid to secure conviction. As
rightly held per Niki Tobi JSC in Sofola v The State (2005) FWLR (Pt. 269) 1751 at 1782: “A
confessional statement is the best evidence in our criminal procedure. It is a statement of admission
of guilt of the accused and the court must admit it in evidence unless it is confessed at the trial.
Once a confessional statement is admitted, the prosecution need not prove the case against the
accused beyond reasonable doubt, as the confessional statement ends the need to prove the guilt
of the accused” By reason of the importance and the impact of confessional statements, rigid rules
have been developed to ensure the voluntariness of confessions. Confessions which are not shown
to be voluntary or confession obtained by oppression are excluded.

Kindly note that confessional statements can be challenged on two distinct grounds:
a. Where the accused alleges that the statement is not his own and denies authorship of the
statement
b. Where he admits authorship but states that he did not voluntarily make the statement.

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In the former situation of denying the authorship, the statement is still admissible but the court will
decide on the weight to be attached to it. See Akpan v State (1992) 6 NWLR (Pt.248) 438
Mohammed v State (1991) NWLR 192, 438, Ovie v. State (1985) 4 SC 1 at 27. In the latter
situation the court conducts a trial within a trial to determine the reliability or otherwise of the
statement, where the statement is not shown to be reliable, it is inadmissible. Failure to conduct a
trial within a trial in a case where the admissibility of the statement on ground of unreliability is
challenged, renders the confession inadmissible. See Obizodo v State (1987) 4 NWLR (Pt.67) 1.
In a trial within trial the burden of proving reliability of the confessional statement is on the
prosecution.
REQUIREMENTS OF A VALID CONFESSION
1. A confessional statement must be free and voluntary, Habibu Musa v The State (2013)
53 NSCQR pp. 90-91 per Peter-Odili, JSC
“ISSUE 2
Whether the learned majority Justices of the Court of Appeal were right in relying on Exhibit A
(that is the alleged confessional statement of the appellant) in upholding the Judgment of the trial
court.
Learned counsel for the appellant submitted that the alleged confessional statement credited to the
appellant which was tendered as Exhibit A was worthless, of no evidential value and ought not to
have been relied upon by the courts below in convicting and affirming the conviction of the
appellant for rape. That in taking Exhibit A from the appellant, the mandatory provisions of Section
36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria was violated by PW5. He said
the appellant can still raise the issue of admissibility of an inadmissible piece of evidence such as
Exhibit A on appeal. He cited the cases of; Abolade A. Alade v. Salawu J. Olukade (1976) 2 ALL
NLR 56 at 61; Tijani v. Akinwunmi (1990) 1 NWLR (pt. 125) 237 at 248; Aigbadion v. The State
(1999) 1 (NWLR) (pt. 586) 284 at 297; Ogunye & Ors. v. The State (1999) 5 NWLR (pt. 604) 548
at 570 – 571.
Mr. Enweluzo of counsel for the appellant said the failure of the appellant’s counsel to raise
objection at the time Exhibit A was tendered cannot be used to punish the appellant. He referred
to: Bowaje v. Adediwura (1976) 6 SC 143 at 147; Akinyede v. The Appraiser (1971) ALL NLR
162; Ahmadu v. Salawu (1974) ALL NLR 822; Onyebuchi Irogbu & Anor v. Richard Okordu &
Anor. (1990) 6 NWLR (Pt. 159) 643 at 669.
He further contended that Exhibit A is wrongly admitted in evidence at the trial court and ought to
have been taken into account in convicting the appellant. Also, that such a confessional statement
when made by the accused person ought to have been taken before a superior police officer for
confirmation or denial of the confessional statement. He referred to R v. Omerewure Sapele (1957)
2 FSC 24; Maidawa v. Husaini (2000) 6 NWLR (pt. 662) 698 at 704; Erekanure v. The State
(1993) 5 NWLR (Pt.294) 385 at 393.
He said the provisions of 36(6)(a) of the 1999 Constitution which are meant for the benefit of the
appellant and also in the overall public interest to ensure fair trial of accused persons of criminal

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offences are violated it would be said that he has been denied justice and the trial declared a nullity.
He cited Josiah v. The State (1985) I NWLR (pt.1) 125 at 138; Okegbu v. The State (1979) 11 SC
1 at 52; Ifezue v. Mbadugha (1984) 1 SCNLR 427.
In response, Mr. Sa’eda of counsel said even though the accused resiled on his confessional
statement, it did not detract from the admissibility which the trial court admitted and affirmed by
the Court of Appeal in keeping with the law. He cited Sule v. State (2009) 17 NWLR (Pt. 1169)
33 at 60 SC; Egboghonome v. State (1993) 7 NWLR (pt. 306) 383 at 419 – 420 (SC); Akpan v.
The State (2001) 15 NWLR (pt. 737) 745 at 763.
In this regard the appellant had urged the court to discountenance the confessional statement,
Exhibit A since the appellant was at the court of trial denying making Exhibit A. In the statement
the appellant said:
“I the bearer of the above name and address stated as follows: I could remember over three months
I took Fatima to Rama house and sex her. Then on the 27th March 2004 at about 1700 hrs, I still
took her to same house of Rama and sex her.”
PW5, the Investigating Police Officer in tendering Exhibit A in court of trial said:
“The accused speaks English. He spoke in Hausa while I translated it into English. Yes I speak
Hausa fluently. Yes after I recorded the statement I read it to him and I asked him whether that
was all or there is anything else. He said that was all.”
The submission of the appellant is understood to mean that once an accused resiles from a
statement he was said to have made, the court should refrain from admitting it or if admitted should
not be used in evidence. That view of the appellant’s counsel is not borne out from the law and
practice as exist now. This is because confession and testimony of the accused person are evaluated
and assessed by a trial judge together with the totality of the evidence so as to reach a just decision.
Therefore, the fact that the appellant resiled from that Exhibit A, the confessional statement would
not affect negatively the evaluation of the evidence plus that statement which when taken through
the tests that qualifies a confessional statement to be used. In that vein the judge would ask himself
the following questions:
1. Is there anything outside the confession to show that it is true
2. Is it corroborated
3. Are the relevant statements made in it of facts, true as they can be tested
4. Was the prisoner one who had the opportunity of committing the rape
5. Is his confession possible
6. Is it consistent with the other facts which have been ascertained and have been proved
It needs be restated that this court, the apex court had decreed that a free and voluntary confession
alone properly taken, tendered and admitted and proved to be live is sufficient to support a
conviction once it meets with the six-point test stated above.

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Considering these guide lines laid down by this court and placed conually with the case in hand,
the confessional statement of the appellant, Exhibit A is enough on itself to ground the conviction.
I rely on the following cases: Sule v. State (2009) 17 NWLR (pt. 1169) 33 at 60 SC; Esboshonome
v. State (1993) 7 NWLR (Pt. 306) 383 at 419 – 420 Nsofor v. State (2004) 18 NWLR (pt. 905)
292 at 310 – 311. Dawa v. State (1980) 8 – 11 SC 236 at 267 – 168; R v Sykes (1913) 8 CAR
Appeal Report 233.
In this matter of the confessional statement the concurrent findings are in keeping with the surfeit
of evidence lending support to the weight attached to the statement. The conclusion being that the
issue is resolved against the appellant and that the Court of Appeal was right in relying on Exhibit
A in upholding the decision of the trial court.”
In R v Thompson (1893) 2 QB 2, the accused was tried for embezzling the money of the company,
on being taxed with the crime by the chairman of the company, he said, “Yes I took the Money”
and afterwards made a list of the sum he embezzled and with the assistance of his brother paid
back part of the money to the company. The chairman stated that at the time of the confession no
threat was used and no promise was made as regards the prosecution of the accused but admitted
that before receiving the confession, he had told the accused’s brother, “it will be right for your
brother to make a statement” and therefore the evidence of the confession, the court drew the
inference that the accused when he made the confession, knew that the chairman had spoken those
words to his brother. It was held that the confession of the accused had not been satisfactorily
proved to have been free and voluntary and therefore the evidence of the confession ought not to
have been received.
See Babalola Borishade v. Federal Republic of Nigeria (2012) LPELR-45726(CA), Hussein
Mukhtar, J.C.A. held that an extra judicial statement made by the appellant that was not voluntary
is not admissible and if wrongly admitted, it has to be expunged from the record. It is only
admissible in evidence where it is made by the accused person voluntarily. In other words, the
voluntary element in the statement is what qualifies it as admissible, which in the instant case is
totally absent.
In the case of Fatumani v. R (1950) 13 WACA 39, the Court held as follows: "For admitting a
confessional statement, it must be shown to be free and voluntary. In other words, that it is not
induced by threat or promise. A confessional statement obtained against the background of
inducement or threat or promise is inadmissible. The inducement must be made by a person in
authority, for instance police." See also R v. HASKE (1961) SCNLR 90.
The Court in the case of Dupup v. Pinlin (1975) 3 ALL ER 175 held thus: "The burden of proving
the voluntariness of the confession lies on the prosecution and can only be discharged if the Court
is satisfied beyond reasonable doubt that the confession is voluntary and the question whether a
statement is voluntary is for the judge "
2. A confessional statement must be direct, positive, true and unequivocal of facts that
satisfy the ingredients of the offence the accused person confesses to have committed.
Ikpesan v. State (1981) 9 SC 17

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In Afolabi v C.O.P (1961) 1 ALL NLR 654 the Appellant was a shop-keeper, who was convicted
of stealing specific items and properties of his employers. The evidence of the prosecution was
that a document had been prepared by the employers showing 23 alleged missing items and
properties from the stock of goods when the list was shown to the Appellant by the Manager in the
presence of a co-employee. The Appellant was alleged to have told the manager he had been busy
with election campaign and had taken certain of the stock and sold them in order to assist with his
election expenses. He however, did not indicate which of the goods were taken out. The accused
did not specify which of the items he said he sold and converted the funds to his own use. It was
held that the accused had not confessed that he committed the crime.
In Akpan v State the appellant was arraigned for killing the deceased, his statement to the police
was to the effect that during a scuffle, he hit the deceased with an Iron Rod. The police did not
tender any medical report to show that the accused’s action caused the death of the deceased. The
police relied on his statement arguing that he had confessed to the killing. It was held that there
was no clear evidence of the cause of the death. The court cannot speculate. According Kutigi
JCA (as he then was) “It is settled law that if a person makes a free and voluntary confession
which is direct and positive, if properly proved, he may be convicted on the confession alone
without further evidence.”
Turning to the statement made by the Appellant, the court held that the Appellant merely confessed
hitting the deceased with an iron rod but never confessed that he murdered the deceased. “The
Appellant did not by Exhibits A&B confess to the murder of the deceased. If there was, which I
deny, it was not positive. It was at least proceeded by a struggle or a fight as contained in Exhibit
A. there was equally nothing outside Exhibit A to show that the Appellant killed the deceased.”
Compare with Nungu v. R (1953) 14 WACA 379 where the accused used the wooden haft instead
of the cutting edge of a machete to strike his brother who died as a result. The court accepted that
from the facts, the accused may not have intended to kill but was still convicted of murder because
he at least intended to cause some “grievous harm.” Thus, the Akpan’s decision at best is per
incuriam as it cannot be the correct proposition of the law, with the greatest respect to the court.
According to Prof Osipitan, with the greatest respect to the court, a person who hits another with
an iron rod intends to cause either death or grievous bodily harm. If death results, the presumption
is that he intends the reasonable probable consequence of his action. That he did not specifically
confess that he intended to kill or cause grievous bodily harm does not depart from the fact that he
murdered the deceased. The fight between them would only have reduced the offence from murder
to manslaughter and not complete acquittal.
In Adeyemi v State (1991) 6 NWLR 195, 42. The accused was charged for murder but convicted
of manslaughter. The accused during interrogation had admitted shooting into the air to scare
robbers who had invaded the area and had not shot directly at the deceased. He stated that he was
told that a stray bullet from his gun had hit the deceased. The police failed to call expert evidence
as to whose bullets hit the deceased especially when evidence revealed that other neighbours were
shot during the invasion. Prosecution relied exclusively on the statement made by the accused in
order to prove murder. It was held that the admission made by him was neither direct nor positive

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as to the killing of the deceased. He never confessed that his bullet killed the decease. “In the
instant case in which the appellant in his so-called admission stated that he fired his gun into the
air in the night and there was evidence that there were other gun shots from other persons that
night, he was in no position to admit conclusively that it was bullets from the shot of his gun that
hit and killed the deceased.”
Gbadamosi v State (1992) 2 NWLR 266, 465 is the authority for the view that for an
extrajudicial statement to qualify as a confessional statement, the accused who is alleged to have
made the statement must admit or agree clearly, precisely and unequivocally in the statement that
he committed the offence charged. The court held that to constitute a confession, a statement must
admit or acknowledge that the maker thereof committed the offence he was charged. It must in so
doing be clear, precise and unequivocal.
It is also the authority for the view that “the statement made by an accused person implicating
another is not evidence against that other person. In the instant case whatever 2nd appellant said in
exhibit J which implicates the 1st appellant must not be evidence against the latter.” Now section
29 (4).
3. (Section 29(4)), A confessional statement is only admissible against the maker not
anyone else, not against his accomplices Grange v FRN (2010) 7 NWLR (pt.1192) 135
@ 142; Agents, Counsel and spouses are incapable of making confession on behalf of the
accused person
R v. Asuquo Etim Inyang (1931) 10 NLR 33, in a previous proceedings for maintenance of order
in the first marriage, counsel to the accused had admitted the facts of the marriage. The accused
himself merely gave evidence as to his financial circumstance praying for the reduction of the
maintenance rate. He was subsequently arraigned for bigamy. The prosecution relied on the two
marriage certificates as evidence of the marriages allegedly contracted by him. The prosecution
also relied on the admissions made by counsel on the existence of the first marriage in the
maintenance proceedings. He was convicted of bigamy. However, on appeal conviction was set
aside. The court held that the admissions before the court in the maintenance proceedings could
not be treated as confession for purpose of criminal proceedings. The only evidence against the
accused was that of marriage certificates and these were not sufficient proof that the first wife was
still alive when he contracted the second marriage.
4. The Evidence Act stated further in Section 29(1) that in any proceedings a confession
made by an accused person may be given in evidence against him in so far as it is
relevant to any matter in issue in the proceeding and is not excluded by the Court in
pursuance of this Section.
Refer to Sofola v The State supra, per Niki Tobi JSC.
The C.A held in Samuel Obasi v. The State (2020) LPELR-49679(CA) that a confessional
statement is the best evidence in our Criminal Procedure. And once a confessional statement is
admitted, the prosecution need not prove the case against the accused person beyond reasonable
doubt, as the confessional statement ends the need to prove the guilt of the accused.

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A person can be convicted on confessional statement alone where same is direct, positive and
proved. This is because there cannot be a more appropriate person to give evidence of the guilt of
the accused more than the accused himself.
5. A confession can be made prior to the time when the accused was brought before the
court. The definition in section 28 is very clear on this as it used the phrase “An admission
made at any time by a person charged with a crime, stating or suggesting the inference
that he committed that crime.”
R v Eka Ebong (1947) 12 WACA P.139 is the authority for the view that a statement will amount
to a confession even if it was made prior to the time that the accused is charged to court.
In Sunday Onungwa v State (1976) 12 WACA 139, the accused was charged for murder. Evidence
revealed that during preliminary investigations, he acknowledged the ownership of a blood-stained
machete which was recovered from the scene of the murder. He also stated that he used the machete
on the deceased attributing same to devil’s work. He made the statement in the presence of
members of his family among whom was his brother. During trial, it was contended, that since the
confession was made ever before a decision was taken on whether to charge him to court or not, it
did not satisfy the requirement of a person charged with an offence and consequently inadmissible.
The contention was rejected by the court which reasoned that confession made by any person
at any time is relevant and therefore admissible.
It is important to know that under the repealed Evidence Act, the test of admissibility of a
confessional statement is the voluntariness of the confessional statement. However, the Evidence
Act 2011 has introduced a new test, the test of reliability of a confessional statement. S. 29 (2)
Evidence Act, 2011.
Therefore, where the statement is made in circumstances which suggests its unreliability, it will
be inadmissible.
See Babalola Borishade v. Federal Republic of Nigeria (2012) LPELR-45726(CA), Hussein
Mukhtar, J.C.A. held that an extra judicial statement made by the appellant that was not voluntary
is not admissible and if wrongly admitted, it has to be expunged from the record. It is only
admissible in evidence where it is made by the accused person voluntarily. In other words, the
voluntary element in the statement is what qualifies it as admissible, which in the instant case is
totally absent.
Section 29(2), (3) & (4) of the Evidence Act 2011 provides thus: -
"29(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made
by a defendant, it is represented to the Court that the confession was or may have been obtained -
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the
time, to render unreliable any confession which might lie made by in such consequence, the Court
shall not allow the confession to be given in evidence against him except in so far as the

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prosecution proves to the Court beyond reasonable that the confession (notwithstanding that it may
be true) was not obtained in it manner contrary to the provisions of this section.
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a
defendant, the Court may of its own motion require the prosecution, as a condition of allowing it
to do so, to prove that the confession was not obtained as mentioned in either Subsection (2) (a) or
(b) of this Section.
(4) Where more persons than one are charged jointly with an offence and a confession made by
one of such persons in the presence of one or more of the other persons so charged is given in
evidence, the Court shall not take such statement into consideration as against any of such other
persons in whose presence it was made unless he adopted the said statement by words or conduct."
The prosecution has the onerous duty to prove beyond reasonable doubt that an extra judicial
statement was made voluntarily. Nwachukwu v. State (2002) 12 NWLR (Pt. 782) 543. A voluntary
confession is a relevant fact and admissible against the person who makes it only but no other
person.
Under S. 29 (5) oppression includes torture, inhuman or degrading treatment, and the use of
threat or violence whether or not amounting to torture.
According to Sachs J. in R. v. Priestley (1965) 1 CAR P.1 Oppression imports something which
“tends to sap and has sapped that free will which must exist before a confession is voluntary.
Whether or not, there is oppression in an individual case depends upon many elements. They
include such things as the length of time intervening between periods of questioning whether the
accused has been given proper refreshment or not and the characteristics of the person who makes
the statement.”
See also, R v Prager “where oppressive questioning was described as questioning which by its
nature, duration and other attendant circumstances including the fact of custody excites hope such
as hope of release of ears or so affects the mind of the subject that his will crumbles and he speaks
when otherwise he would have stayed silent.”
The principle of oppression was applied in State v. Oloyede (1973) ESCLR p.1, the accused had
undergone interrogation at different times for 7 days. He had also been kept in solitary custody
during which no attention was paid to his failing health. He was weak both physically and mentally.
He was later rushed to the hospital because of ill health. Agbaje J had no difficulty in holding that
the statement made by him under such bad state of health was involuntary and therefore
inadmissible as same was made as a result of oppressive conduct.
See also, Balogun v AG Fed, the accused persons who stood trial for various offences under the
customs and excise Management Act had undergone torture. One of the accused stated that upon
his arrest he was taken to NSO Headquarters. He stated that he was ill-treated by NSO who would
not accept negative answers. Court found that the offences committed were within the
constitutional powers of police and not NSO to investigate.

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It was held that “it is against the law to shift the proper venue which is the police station for taking
statements from arrested persons and investigating cases to any place inherently lacking or not
likely to be conducive to, reasonable for freedom for such arrested persons.
Secondly, it is unacceptable to arrest persons and take them to the Military Barracks or NSO office
over civil offences which the police is by law to handle and make them to give their statements
before they are released to the police. It will be easy to read into that situation a condition of
compulsion to make a statement before that release. “I think it is an oppression for a state security
agency to take a suspect or accused into its custody in respect of a matter having nothing to do
with the security of the state and insist on a statement being made particularly under conditions
and in an atmosphere, which instil fear not only in the suspect but also in the police officer called
to take the statements.”
Lord Parker C.J. in the case of Collins v Gunn declared “a fundamental principle of law is that
no answer and no statement is admissible unless it is shown by the prosecution not to have been
obtained in an oppressive manner and to have been voluntary in the sense that it has not been
obtained by threats or inducements.”
In Banjo v State, the appellant made confessions after he was suspended in the air with hanger by
his interrogators who beat him with sticks, cutlass and were urging him to confess to the crime. It
was held that the confession was as a result of torture and therefore not admissible. According to
the court, admissibility in evidence of the confessional statement in Exhibit A was fraught with
death wounds.
The case of State v Olashehu Salawu is the authority that supports the view that where a
confessional statement is made by the accused who has been subjected to inhuman and degrading
treatment, the confession will not be admissible.
In Amachree v Nigerian Army, chains were clamped around the defendant’s legs when he was
being interrogated and when he made the statement. It was held that the statement was
oppressively obtained and therefore inadmissible.
In addition, The Nigerian National Assembly enacted the Anti-Torture Act 2017 to expressly
criminalize, prohibit and punish torture and other forms of cruel, inhuman or degrading treatment.
(Compare to S.34 CFRN). It offers protection for victims and witnesses of torture. Article 1
imposes an obligation on government to ensure that all persons, including suspects, detainees and
prisoners are respected at all times and that no person under investigation or held in custody is
subjected to any form of physical/mental torture. It encourages government to adhere to domestic
and international standards on absolute condemnation and prohibition of torture. See Peter Nemi
v. AG Lagos State. It is noted that the act of torture can be physical or mental. Article 2 describes
“acts of torture’. Torture is committed when an act by which pain and suffering, whether physical
or mental, is intentionally inflicted on a person to obtain information or confession from him or a
third person punish him for an act he or a third person has committed or suspected of having
committed intimidate or coerce him or third person for any reason based on discrimination of any
kind.

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FACTS THAT NEED NOT BE PROVED

PRESUMPTION
Evidence in law is the material items or assertions of fact that may be received by a court of law
as a means of ascertaining the truth or otherwise of any alleged matter of fact under investigation
before the court. It is the establishment of facts by means of evidence. Anyone that wants a court
to give judgment in his favour must submit to the court materials relevant to his case and materials
that support his assertions and claims. Prof. Noakes asserts that “judicial evidence consists of facts
which are legally admissible and the legal means of attempting to prove such facts3” To Phipson,
evidence means “the testimony, whether oral, documentary or real which may be legally received
in order to prove or disprove some facts in dispute4”
Nevertheless, there are exceptions to the principle that he who asserts an allegation or fact must
prove his case with relevant materials not he who denies it. The exceptions are facts that needs not
be proved by evidence. They are taken for granted by the court and do not therefore need to be
proved. One of these exceptions is facts presumed. Professor Lawson in his work on
Presumptive Evidence states that a presumption is a rule of law permitting or requiring courts of
justice to draw a particular inference from a particular fact or from particular evidence, unless and
until the truth of such inference is disproved5.
Section 145 provides:
(I) Whenever it is provided by this Act that the court may presume a fact, it may either regard such
fact as proved unless and until it is disproved, or may call for proof of it.
(2) Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact
as proved unless and until it is disproved
(3) When one fact is declared by this Act to be conclusive proof of another, the court shall, on
proof of the one fact, regard the other as proved and shall not allow evidence to be given for the
purpose of disproving it.
From S. 145 E.A quoted above, there are three classes of presumptions:
a. Under S.145 (1) this class of presumption is not mandatory but permissible. Here, the court is
permitted to use its discretion to either presume the existence of a fact or disprove or the court may
suo motu call for proof of such facts. The word used is ‘MAY’
b. Under S.145 (2) the court is mandated to presume certain facts. The court does not have a
discretion here but to presume the existence of certain facts, except disproved by means of
evidence. The word used is ‘SHALL’

3
Nokes, An Introduction to Evidence, 4th Edition, at page 6.
4
Phipson, Evidence 11th edition Para 3
5
Lawson, Law OF PRESUMPTIVE EVIDENCE (2d ed., 1899) 639.

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c. Under S.145 (3) here, this category is conclusive prove under the Act, it shall not be disproved
by any evidence.
Chief Solomon Adegboyega Awolomo, SAN rightly states: Presumption operates as substitute
for evidence. No evidence is required of a fact, which is presumed in a party’s favour.
Presumptions are not only exception to the principles of law that he who asserts must prove but
also one of the ways in which matters may be established other than by evidence6.
Alhaji Adamu v. Haruna Gulak (2013) LPELR-20844(CA) Per ABBA J.C.A pp.20-22 “It is
now an age long principle of law that there are different ways of proving title to land and among
the ways are the following five (5) legally accepted means:
a. Proof by traditional evidence
b. Proof by production of documents of title duly authenticated, unless they are documents twenty
or more years old produced from proper custody.
c. Proof by act of ownership in and over the land in dispute such as selling, leasing, making grant
or farming on it or a portion thereof extending over a sufficient length of time numerous and
positive enough to warrant the interference that the persons exercising such propriety acts are the
true owners of the land.
d. Proof by acts of long possession and enjoyment of the land which prima facie may be evidence,
of ownership not only of the particular piece of land with reference to which such acts are done,
but also of other land so situate and connected therewith by locality or similarity that the
presumption under Section 46 and 146 of the Evidence Act applies and the difference can be
drawn that what is true of one piece of land is likely to be true of the other piece of land.
e. Proof by possession of connected or adjacent land in circumstances rendering it probable that
the owner of such connected or adjacent land”
Okafor v. Okafor & Ors (2014) LPELR-23561(CA) Per Bolaji-Yusuff, J.C.A pp. 36-41 Para F:
“By virtue of Section 146 (1) of the Evidence Act, there is a presumption of genuineness in favour
of certified copies of documents, that section of the Evidence Act reads: - The Court shall presume
every document purporting to be a certificate, certified copy or other document, which is by law
declared to be admissible as evidence of any particular fact and which purports to be duly certified
by any officer in Nigeria who such document is substantially in the form and purports to be
executed in the manner directed by law in that behalf.”
A Community reading of the Sections 85-86(1) and 146 of the Evidence Act, 2011 clearly brings
to the fore, the principle of law that the only means of proving the contents of a document is by
production of the document itself. Where the document produced is a certified true copy duly

6
Awomolo, “Presumptions” (2007) Law and Practice of Evidence in Nigeria (ed) Afe Babalola Sibon Books Ibadan
p.365

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certified in accordance with Section 104 of the Evidence Act to be genuine, the presumption of
genuineness enures in favour of the document particularly where the content of the document is
substantially in the form and purports to be executed in the manner directed by the applicable law”
Chief G. N. Okoye v. Mr. Frank Tobechukwu (2016) LPELR-41508(CA) Per Bolaji-Yusuf,
J.C.A pp. 30-31 para D "The provisions of Section 145 (2) and 150 of the Evidence Act, 2011
on the presumption as to a Power of Attorney is very clear and unambiguous and does not warrant
any clumsy argument. Those sections provide that:
145 (2). “Whenever it is directed by this Act that the Court shall presume a fact, it shall regard
such fact as proved unless and until it is disproved.
150. “The Court shall presume that every document purporting to be a power of attorney, and to
have been executed before and authenticated by a notary public or any Court, judge, magistrate,
consul or representative of Nigeria or, as the case may be, of the President, was so executed and
authenticated.”
A Combined reading of Sections 145 (2) and 150 of the Evidence Act, 2011 clearly brings out the
intention of the law maker. Once a Power of Attorney shows ex facie that it was executed before
a Notary Public who authenticated same, the Court must presume that its execution was valid and
regular. The Court has no discretion in the matter. The provision of Section 145 (2) of the Evidence
Act, 2011 reinforces the command and the mandatory directive given to the Court in Section 150
of the Act."
Whoever asserts that a power of attorney has not been regularly executed or that it is a forgery as
the appellant contends has the burden to prove his allegation by cogent and credible evidence. See
N. P. S. VS. Adekanye & Ors (2002) 15 NWLR (PT. 790) 318
In Omon Idogbo & Ors v. Stanley Ajayi (2017) LPELR-42435(CA) Per Barka, J.C.A (Pp. 26-
27 Para D) “It has been held that by the provisions Sections 35 and 145 (1) of the Evidence Act
2011, acts of long possession by the plaintiff can be prima facie evidence of ownership. Acts of
possession and enjoyment of land, may be evidence of ownership of a right of occupancy not only
of the particular piece or quantity of land with reference to which such acts are done, but also of
other lands so situated or connected with by locality or similarity, that what is true as to one piece
of land, is likely to be true of the other. See Burutolou v. Yelbake (2015) ALL FWLR (Pt. 771)
1534 @ 1552”
TYPES OF PRESUMPTIONS
Irrebuttable presumption of law: This is a sacrosanct presumption that the law does not allow
to be contradicted by evidence. For example, a child below 7 years is presumed to be incapable of
committing an offence; under S.173 E.A. every judgment is conclusive proof of the matters
decided therein.

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Rebuttable presumption of law: This is an assumption drawn by a court of law that is taken to
be true unless someone comes forward to contest it and prove otherwise. For example, a defendant
in a criminal case is presumed innocent until proven guilty. See sections 145-168 E.A. Other
examples are:
i. Presumption of marriage S166
ii. Presumption of Legitimacy S165
iii. Presumption of Sanity S27 CC
iv. Presumption of Death S164
v. Presumption of Negligence Burkett v Burkett Estate
vi. Presumption of Regularity S168
vii. Presumption of Undue Influence Dehmel v Smith
viii. Presumption of Ownership S143
ix. Conflicting Presumption

PRESUMPTION OF FACTS
“Presumption of fact means presumption established from another fact or group of facts. For
instance, the possessor of recently stolen goods is considered the thief by presumption of fact. It is
a type of rebuttable presumption. It is also called as factual presumption”. Some presumptions of
facts are set out below:
i. Presumption of Intention
ii. Presumption of Guilty Knowledge
iii. Presumption of Continuance
iv. Presumption of Course of Business
v. Presumption of Withholding Evidence
vi. Presumption Relating to a Document creating obligations

Presumption of Intention
Every individual is presumed to intend the natural consequences likely to flow directly from his
deliberate actions. Since the court cannot read the mind of anyone, for according to Bryan CJ “the
devil himself knoweth not the intention of man” and since no one is capable of seeing into
another’s mind and of being able to state with absolute certainty what is his intention. Therefore,
intention can only be inferred from overt acts, e.g. intention to kill may be inferable from the
severity with which a machete blow was struck. For example, someone calling one’s mother a
witch and he picked up a machete to strike that person who died as a result, the natural inference
would still be drawn as to the likely outcome of striking a person with a machete. See R v. Onoro
(1961) All NLR 33.
The “court in discovering the intention of the accused, sometimes resort, for assistance, to
measuring the mind of the accused against what would have been the intention of a hypothetical,
reasonable, average or ordinary man in the same circumstance. This is done by adopting the

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presumption that a man is presumed to intend the natural consequence of his act. This however
should only be a guide to ascertaining what the real intention of the accused was. The presumption
may be rebutted or negated by direct evidence: See Nungu v. R (1953) 14 WACA 379 where the
accused used the wooden haft instead of the cutting edge of a machete to strike his brother who
died as a result. The court accepted that from the facts, the accused may not have intended to kill
but was still convicted of murder because he at least intended to cause some “grievous harm.”
Presumption relating to possession of stolen goods or the doctrine of ‘recent possession’
S. 167 (a) E.A states that “a man who is in possession of stolen goods soon after the theft is either
the thief or has received the goods knowing them to be stolen, unless he can account for his
possession.” See Oputa JSC in Eze v. The State (1985) LPELR-1189(SC) “in addition to direct
oral testimony, the court can also rely on Presumptions. One such presumption which will
adequately fit in with the facts of this case is the presumption: - "that a man who is in possession
of stolen goods soon after the theft is either the thief or has received the goods knowing them to
be stolen, unless he can account for his possession." So, unless there is a satisfactory explanation,
the possessor of stolen goods is deemed either to have stolen the goods himself or received them
fraudulently from the thief.”
Per Oputa JSC delivering the leading judgment: “To appreciate and better follow the arguments,
it may be necessary to have a brief resume of the facts of this case. In the early hours of the morning
of the 14th July, 1981, Livinus Eke called as the 1st P.W. was riding on his Suzuki motor-cycle
model 125 with registration No. 1M 1453 along Faulks Road, Aba. He then saw two persons beside
a motor-cycle, one was looking beneath it, while the other was standing beside it. Livinus rode
close to them thinking they had some trouble with their motor-cycle. On approaching them, they
ordered him to stop and to put up his hands. When he obeyed, one of them – the Appellant –
pointed a gun at him (Livinus) who then dropped his own Suzuki motor-cycle and fled. The
Appellant fired at him and missed. On looking behind, Livinus Eke discovered that the Appellant
and his other partner in crime had collected his motor-cycle and their own motor-cycle and
disappeared.
In the evening of the same day, 14/7/81, Gilbert Eke (called as 5th P.W.) the son of Livinus Eke
(1st P.W.) on his way back from the Ariaria Market saw someone riding his father’s motor-cycle,
stolen that morning. He followed him ultimately to a Beer Parlour. Having satisfied himself that
the motor-cycle he saw earlier on was his father’s missing motor-cycle, Gilbert Eke went home
and told his father. Both of them went to the Ariaria police Post and reported. Following their
report, sergeant Donatus Esele, Sgt. NO. 5168, called as 2nd P.W., Newton Dunu, Sgt. No. 29904,
called as 3rd P.W. and PC. No. 92503, Ukpabi Ekoh, called as 4th P.W., all proceeded to the Beer
Parlour. On reaching the Beer Parlour, Gilbert Eke (5th P.W.) identified his father’s motor-cycle
to the police officers – and immediately he did that, two men among the crowd drinking in the
Beer Parlour got up from their seats. One ran away, but the other, the Appellant, was arrested. The
Appellant was then taken to the Ariaria Police Post along with Livinus Eke’s missing Suzuki
motor-cycle parked in front of the Beer Parlour. The Suzuki motor-cycle was pushed to the Police

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Post. At the Ariaria Police Post, Sgt. Donatus Esele (2nd P.W.) personally searched the Appellant
and found, tucked away in his breast pocket, a Suzuki 125 ignition key. Sgt. Newton Dunu,
No.29904 (3rd P.W.) obtained a voluntary statement from the Appellant after the usual caution.
The statement was tendered as Ex. e. Exhibit C contained this remarkable sentence – “I did not
know how the ignition key of the Suzuki manage and enter my pocket.”
In addition to direct oral testimony, the court can also rely on Presumptions. One such presumption
which will adequately fit in with the facts of this case is the presumption: - “that a man who is in
possession of stolen goods soon after the theft is either the thief or has received the goods knowing
them to be stolen, unless he can account for his possession.”
This is the statutory provision of Section 148(a) of the Evidence Law of Eastern Nigeria (Cap 49
of 1963) applicable in Imo State. The above Section 148(a) of the Evidence Law is thus the
Nigerian equivalent of the English doctrine of Recent Possession (of Stolen Goods). For this
doctrine to operate there ought to be evidence: -
1. That the accused (here the Appellant) was found in possession of some goods.
2. That those goods were recently stolen.
3. That the Appellant failed to account for his possession.
The expression “soon after the theft” – (in other words how soon will the possession be to lead to
the inference that the possessor was the thief and not merely the receiver with guilty knowledge)
– will naturally depend on the nature of the goods and the facility and ease with which that type of
goods can pass from hand to hand: R v. Palmer Iyakwe (1944) 10 W.A.C.A. 180: Kwartia
Kwashie v. The King (1930) 13 W.A.C.A. 86.
In Palmer Iyakewe’s case, the Appellant was found in possession of the stolen shoes “five months
after the theft” and the West African Court of Appeal held that – “the doctrine of recent possession
cannot operate in such a way as to make it proper for the Appellant to be convicted of the burglary
and stealing”. A verdict of guilty of receiving stolen property knowing it to be stolen was
accordingly substituted by W.A.C.A.
In Kwartie Kwashie’s case, the Appellant was found in possession of stolen articles barely 90
minutes after the theft and the West African Court of Appeal held that from those circumstances,
it was open to the trial court to convict the Appellant of house breaking and stealing.
Before deciding whether from the facts and circumstances of this case, the Appellant’s possession
was recent, that is, that it was soon after the robbery to lead the trial court and the Court of Appeal
to the conclusion they arrived at – that the Appellant was one of the armed robbers who being
armed with a gun robbed Livinus Eke (1st P.W.) of his 125 Suzuki motorcycle on 14th July 1981,
I will like to emphasise the point made by the West African Court of Appeal in Kwartie Kwashie’s
case supra.

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The presumption of “Recent Possession” as contained in Section 148(a) of the Evidence Act is not
a presumption of law but a presumption of fact. If it were a presumption of law (praesumptionis
juris et de jure) it will be an absolute inference established by law and therefore irrebuttable. But
being a presumption of fact, it is inconclusive and rebuttable. In fact, the marginal heading of
Section 148 of Evidence Law clearly states – “The Court may presume the existence of certain
facts.” The presumption that an appellant found in recent possession of stolen property is either
the thief or the receiver with guilty knowledge is merely an inference which the court of trial is at
liberty to draw, (not must draw) from the facts and surrounding circumstances of each particular
case. In any given case, the court may think that the totality of the evidence and the surrounding
circumstances do not support the inference that the person accused was the thief or receiver with
guilty knowledge. In such a case, Section 148(a) of Evidence Law and the presumption therein
contained fail. Section 148(a) above clearly meant this when it made the presumption subject to
“unless he can account for his possession.” Where the person accused successfully accounts for
his possession, he may be found “not guilty.”
But to be able to account for “his possession” the fact of such possession will first of all be
unequivocally admitted. In the case on appeal, the issues agitated in the only ground argued will
boil down to: -
1. Was anything found in the possession of the appellant linking him with the robbery
complained of
2. Was the appellant’s possession recent
3. Did the appellant give any explanation or did he account for his possession”

UDOH v. THE STATE (2017) LPELR-43733(CA) ADAH, J.C.A. p.20 “The law is firm as to
the presumption under Section 167 of the Evidence Act of a person found in possession of recently
stolen goods. In the instant case, the Appellant was found with the phone stolen from the victim
during robbery. He was found within 24 hours of the robbery with the phone. The law places the
responsibility of rebutting the presumption that he who was found with stolen goods is the thief,
on the Appellant and not on the prosecution who located him with the stolen phone. The argument
of the Learned Counsel for the Appellant that the prosecution refused to call one Sunny named by
the Appellant as the person who sold the phone to him cannot in any form be sustained. The onus
is on the accused to call the person he alleged gave him the stolen property and not the prosecution.

In the case of Ehimiyein vs. The State (2016) 16 NWLR (PT. 1538) 173, Rhodes-Vivour, J.S.C
gave an elaborate explanation of the import of the law as follows: - "I intend to comment on the
doctrine of recent possession. Section 167 (a) of the Evidence Act, 2011 states that: The Court
may presume the existence of any fact which it deems likely to have happened, regard shall be had
to the common course of natural events, human conduct and public and private business, in their
relationship to the facts of the particular case, and in particular the Court may presume that- (a) a
man who is in possession of stolen goods soon after their theft is either the thief or has received

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the goods knowing them to be stolen, unless he can account for his possession; "See EZE VS.
THE STATE (1985) 12 (SC) p.4 recent possession that is sufficient to justify the presumption that
a person in possession of stolen goods is the thief is a presumption that varies. For example,
possession of stolen property immediately after it was stolen is very strong presumption that the
person in possession of the goods stole them. Conversely, where the stolen goods are found to
be in possession of a person, a long time after they were stolen (e.g. one year after they were
stolen) it will only amount to probable presumption. The presumption in Subsection (a) of
Section 167 of the Evidence Act is a presumption of fact. Presumptions of fact are logical
inference drawn from other known facts. The legal consequence of arriving at a presumption is to
call on the Appellant to produce contrary evidence.”

Presumption of Continuance
Section 167 (b) E.A states, “that a thing or state of things which has been shown to be in existence
within a period shorter than that within which such things or state of things usually cease to exist,
is still in existence.” This is also known as ‘a short while after’ in relation to a person alive and
healthy at a particular time is presumed to be alive a short while after. See Pe Phene’s Trusts
(1870) L.R. 5 CIL. App. 139 R v. Jones (1883) 11 QBD 366, The Queen v The African Press Ltd
and Anor (1957) WRNLR 1

Related to the presumption of continuance is the doctrine of last seen, here, the law presumes that
the person last seen with the deceased before his death was responsible for his death, and the
accused is expected to provide an explanation of what happened.
The case of Kehinde Olude v. The State (2018) LPELR-44070(SC)pp. 34-36 is relevant to further
illustrate. The facts of this case are straight. One Mr. R. A. Adisa, a lecturer at the College of
Education, Okene had gone to Lagos to buy a car. The PW.2 followed him to the car stand to buy
the car. Mr. Adisa bought the car in his presence. Because he could not drive the car from Lagos
to Okene he engaged the Appellant, against all protests from the PW.2, to assist him drive the car
to Okene. The Appellant and Mr. Adisa set off for Okene from Lagos. Since then Mr. Adisa had
not been seen alive.
KEKERE-EKUN, J.S.C. held that among the facts relied upon by the trial Court was the fact
that the appellant was the last person seen with the deceased. The doctrine, which is a development
of case law, requires that a person charged with murder who was the last person seen with the
deceased, should offer some explanation as to how the deceased met his death, failing which the
accused person bears full responsibility for his death. See: Archibong v The State (2006) 14
NWLR (Pt. 1000) 249; Haruna v A.G. Federation (2012) 9 NWLR (Pt. 1306) 419; Kolade v The
State (2017) LPELR - 42362 (SC)
In Haruna v A.G. Federation, SULEIMAN GALADIMA, J.S.C (Delivering the Leading
Judgment) “The background facts of this case have a remarkably very sad antecedent. The
Appellant as has been stated was charged for the offence of culpable homicide contrary to section

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221 of the Penal Code and punishable with death. The case against the Appellant was that on or
about 31st of December, 2003, he caused the death of one Miss E. N. Igwe. The appellant was a
security guard working with POWER HOLDING COMPANY OF NIGERIA PLC (PHCN) and
was attached to the deceased who was at the material time Assistant General Manager, Legal. On
the date the body of the deceased was found on the floor of her house, the appellant was the only
person who was in the compound with her. The Appellant made 3 different statements. In two of
the statements, especially, the 3rd statement, the Appellant clearly, directly and unequivocally
confessed to the killing of the deceased.
The law requires a person last seen with the deceased, whose cause and nature of death is in
contention, to offer an explanation of what he knows about the death of the deceased. Onus is on
the person last seen with the deceased to offer a minimum explanation of what he knows about the
death of the deceased. See IGABELE v. THE STATE (2006) 6 NWLR (pt.975) 100 at 127 -128.
See also OKOKO & ANOR v. THE STATE (1964) 1 ALL NLR. 423.
At page 155 of the Record the trial court stated that it was established that the appellant was the
only person in the house of the deceased at the time of her death. It stated:
“From the evidence of PW3, and PW5 and the testimony of the accused during the cross-
examination it is clearly established that the deceased was alone in the house on to faithful (sic)
day she met her death. And that the accused was with her in the house as the security man. There
is no evidence of any forceful entry or breakage to gain entry into the deceased and the accused
were the only person in the compound and nobody else.”
After the trial court reproduced the testimonies of the Appellant when examined in chief, the court
went to evaluate the said testimony and, in the process, and in the face of other circumstantial,
evidence he was found to have lied and therefore failed to meet the “minimum explanation”
required. In this regard this court in IGABELE v. THE STATE (supra) held.
“We can find no other reasonable inference from the circumstances of the case. The facts which
were accepted by the learned trial Judge, amply supported by evidence before him, called for an
explanation and beyond untrue denials of the Appellant…”
Presumption relating to course of business
Section 167 (c) E.A The court may presume that the common course of business has been followed
in a particular case. If a particular procedure is always adopted in a transaction, it may be presumed
that the same procedure was adopted in a given instance of that transaction. National Employers
Mutual General Insurance Association Ltd. (NEMGIA) v. Ladun Martins (1969) NMLR 236

Presumption of withholding evidence

Section 167 (d) E.A states, the court could presume that evidence which could be and is not
produced would if produced, be unfavourable to the person who holds it. The emphasis here is

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that if a person to a suit does not adduce evidence which he is supposed and has the opportunity to
adduce, then it would be presumed that the evidence is against him if adduced.

In Bello v. Kassim (1969) NMLR 148, the Supreme Court held that this provision deals with the
failure to call evidence and not the failure to call a particular witness. A party is not bound to call
a particular witness if he thinks he can prove his case otherwise. See Uwais, JSC in Samuel
Onwujuba & 2 Ors v. Nathaniel Obienu & 4 Ors (1991) 4 NWLR (Pt 183) 16 at 29. “In the
present case the complaint is that witnesses had not been called and not that the evidence which
they could have given was not adduced. A party is not under any obligation to call a particular
witness (or witnesses) if he can prove his case without calling witness – see Bello v. Kassim (1969)
N.M.L.R. 148. There is no allegation that a particular evidence has been withheld with the failure
to call the witnesses. Under Section 148(d) it is the failure to call evidence that is material before
the presumption in the provisions therein can apply”

Nevertheless, if a party who is to produce such evidence fails to do so, Section 167 (d) E.A will
apply. UBA Ltd. v Julius A. Ibhafidon (1994) 1 NWLR (Pt 318) 90 at 119; Mufutau Aremo &
Ors v. State (1991) 7 NWLR (Pt. 201) 1

However. Before Section 167 (d) E.A can be invoked against a person, the onus is on the party
urging the court so to do to prove the following:
a. That the piece of evidence is available
b. That if it is a document it could be produced by the application of due diligence
c. That the document is capable of production in court
d. That a party has intentionally refused to produce it, and
e. That if produced, the evidence would be adverse to him
See Nnaemeka Agu, J.S.C in Okuzua v Amosu (1992) 7 SCNJ (Pt.2) 243; Chief Isaac Ubo Udo
Udo & Ors v. Chief Thomas Ibanga Uko Inyank Okupa & Ors (1991) 5 NWLR (Pt. 191) 365 at
386; Tewogbade v. Akande (1968) NMLR 404.

Please Note: that mere non-production of particular evidence would not necessarily amount to
withholding such evidence. The two are not the same. For example, where the potential witness
who will give the evidence required is outside the jurisdiction and every effort has been made to
procure him without success, the presumption cannot arise7. Fox v C.OP (1947) 12 WACA 215;
Tewogbade v Akande (supra)

Presumption as to documents creating obligations

Section 167 (e) E.A, provides that when a document creating an obligation is in the hands of the
obligor, the obligation has been discharged. A document creating an obligation is the primary
evidence of that obligation and should naturally be in the possession of the person in whose favour

7
Ibid. Awomolo, SAN

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the obligation has been created. It is therefore reasonable to infer that the obligation has been
carried out if the document is no longer in the possession of the person in whose favour the
obligation has been created. For example, where I.O.U that ought to be with the creditor is found
with the debtor, it will be construed that the obligation has been discharged. Also, giving a receipt
to someone is a presumptive though not conclusive evidence that the issuer of the receipt had
received the money indicated on the receipt. However, if the debtor stole the documents or got it
by any illegal means, the creditor will be allowed to show evidence to prove this. Frank M.
Macauley v. Abudu K.D Seriki & Anor (1925) 6 NLR 92

Pay particular attention to presumptions of intention, stolen goods/ recent possession, Eze v
State, the exceptions created by Rhodes-Vivour, doctrine of last seen, withholding evidence
and documents creating obligations.

PRESUMPTION UNDER OTHER LAWS AND OTHER PARTS OF THE EA

Presumption of Innocence
S.36 (5) 1999 Constitution provides that every person who is charged with a criminal offence
shall be presumed to be innocent until he is proven guilty. Hence, the burden is on the prosecution
to prove the guilt of the accused and the standard of proof is to prove the guilt of the accused
beyond reasonable doubt. Goni v State (1998) 7 NWLR (Pt.452) 79; Ibeziako v. COP (1964)
NMLR 10; Aruna v State (1990) 6 NWLR 125. Also, section 139(1) of the EA., “139. (1) Where
a person is accused of any offence, the burden of proving the existence of circumstances bringing
the case within any exception or exemption from, or qualification to, the operation of the law
creating the offence with which he is charged is upon such person.”

Presumption of Sanity and Intoxication

By a combined reading of S. 139 (3) (C), S. 141 of the Evidence Act and S. 27 criminal code,
every person is presumed to be of sound mind and to have been of sound mind at any material time
until the contrary is proved. This is also a presumption that the accused is fit to stand trial until the
contrary is proved. See The Queen v. Ogor (1961) 1 All NLR 70

Presumption of Ownership
S. 143 E.A. provides that when question is whether any person is the owner of anything of which
he is shown to be in possession, the burden of proving that he is not the owner is on the person
who affirms that he is not the owner. It should be noted that the word presumption is not used here
but this section deals with one of the known presumptions under the Nigerian laws. This section
presumes ownership on the person who possesses and therefore shifts the burden of proof on the
person who asserts otherwise. See Ibrahim Dasibel v. Patrice Ishaya (1996) 1 NWLR (Pt. 426)
626 at 624. Mohammed JCA held: “By operation of S. 146 [now 143 E. A 2011] the respondent

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being in possession of the land in dispute is presumed to be the owner of the land. The onus of
proving that the respondent was not the owner of the land has now shifted to the appellant”

Nwobodo Ezedu & Ors v Isaac Obiagwu, Per Oputa JSC "By admitting that the respondent's
ancestors were, and that the respondent is still, in possession of the land in dispute or even part of
it but as pledgees, the onus of proof that those in admitted possession were not the owners of the
land in dispute shifted to the defendants/appellants by the operation of section 145 (now 143) of
the EA. The trial court should have called upon the defendants to begin, not the plaintiffs who
should not have been called upon to establish what the law presumes in their favour."

Presumption as to the genuineness of certified copies

S. 146 (1) E.A provides that the court shall presume every document purporting to be a certificate,
certified copy or other document as genuine and the person that certified it as duly authorized to
so do. Okafor v. Okafor & Ors (Supra), the Ukpor family inheritance case (Diokpala exempted
from will by the father)

Presumption as to Official Gazettes, Newspapers, Journal, Acts of the National Assembly

and other documents
S. 148 E.A provides that the court shall presume the genuineness of the Official Gazettes of Nigeria
or other country, Newspapers, Journal, resolution of and the Acts of the National Assembly and
other documents. The documents do not have to be produced from proper custody before they can
be presumed genuine. National Electoral Commission & 3 Ors v. Sunday Ogonda Woidi (1989)
2 NWLR (Pt. 104) p. 444 at 454

Presumption of genuineness of documents and recitals which is 20 years old

By virtue of S. 162 E.A recitals, statements, facts, and parties contained in deeds, instruments,
Acts of National Assembly and statutory declarations 20 years old or more would be presumed
properly executed and genuine, though this is rebuttable with valid evidence. See Agbonifo v.
Aiwereoba (1988) 1 NWLR (Pt.70) 325.

Presumption of death
S. 164 (1) EA provides that a person is presumed dead if the person has not been heard of for 7
years by those who would have naturally heard of him. Those in the category of those that ought
to have heard of him include his wife, children, parents, siblings, business associates etc. But note
that there is no presumption as to the time of death. The burden of proving time of death will be
on anyone that asserts it. If two persons died in the circumstances in which it is uncertain which
survived the other, they are presumed to have died in order of seniority. The age in which they
died shall not be presumed. Such age must be established by evidence. Funke v Cole (1930) 10
NLR 1, see also Olude v The State

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Presumption of Legitimacy
Section 165 E.A and S. 115 (3) of the Matrimonial Causes Act provide for presumption of
legitimacy of a child born during the continuance of a valid marriage between his mother and any
man or within 280 days after dissolution of the marriage provided the mother remains
unmarried as the legitimate child of that man. As long as a valid marriage subsists between a
couple (man and woman) there is a presumption that any child conceived and born in the marriage
is legitimate Elumeze v Elumeze (1969) 1 All NLR 311 at 317; Egunwoke v. Egunwoke& Ors
(1966) 2 All NLR 1. This is a strong presumption that can only be rebutted in limited
circumstances. It is rebuttable where:

a. The wife and her husband had no access to each other at any time when the child could have
been begotten, regard being had to both the date of birth and the physical condition of the husband
or
b. That the circumstances of access, if any, was such as to render it highly improbable that sexual
intercourse took place between them when it occurred. See Retired Major J.A. Ogbole v Private
Clement Onah (1990) 1 NWLR (Pt.126), Megwalu v Megwalu (1994) 7 NWLR (Pt.359) 718

The presumption of legitimacy applies where the husband and wife are living apart at the material
time. Etenfield v Ettenfield (1940) NLR P.96. In addition, the presumption applies even where
the couple used contraceptives and the wife admitted to having committed adultery, Watson v.
Watson (1933) 2 All ER 1073. Cotton v. Cotton (1954) 2 All E.R 105

However, where there is a judicial separation, the presumption is in favour of the fact that the
parties obeyed the order of court and did not co-habit, so that, a child born during the duration of
the order is legitimate.

Presumption of Marriage
S.166 E.A. provides for a presumption of the existence of a valid and subsisting marriage between
two persons where evidence is given to the satisfaction of the court, of cohabitation as husband
and wife by such man and woman. Where a man and woman cohabited and were treated as married
by those who know them, there is a presumption that they were living together in consequence of
a valid marriage unless the contrary is otherwise established by evidence. See Re Sphered (1904)
1 Ch. 456

It is important to note that before the presumption can be invoked sexual intercourse must have
taken place between the spouses. See Egunwoke v. Egunwoke& Ors (1966) 2 All NLR 1.

Presumption of undue influence

Where there is a fiduciary or confidential relationship between the parties, the onus is on the
dominant party to prove that undue influence was not exerted. In Burkett v Burkett Estate 2018

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BCSC 320 the court set aside a transfer of land on the basis of resulting trust and undue influence.
It was held “that the presumption of undue influence in gifts arises in circumstances where the
relationship between the parties gives rise to the potential domination of one party by another, and
once established that the potential for undue influence exists, the onus then shifts to the defendant
to rebut and show that the plaintiff entered into a transaction favouring the dominating party as a
result of his own “free, full and informed thought.”

The rule for rebutting the presumption of undue influence arising from a confidential relationship
only requires the grantee of a transaction to prove by clear, satisfactory, and convincing evidence
that the grantee acted in good faith throughout the transaction and the grantor acted freely,
intelligently, and voluntarily

Presumption of Negligence under Common Law

The Claimant can raise a rebuttable presumption of negligence by the defendant in proving that
1. the harm complained about would not ordinarily have occurred without negligence,
2. the object that caused the harm was under the defendant's control, and
3. there are no other plausible explanations.
In the case of Dehmel v. Smith8 the plaintiff was injured while descending in an elevator from the
seventh to the main floor of the Pfister Hotel. Before reaching the second floor the elevator
suddenly dropped, descending into a pit or well approximately two feet below the main floor. The
Court stated that the doctrine of res ipsa loquitur raised a presumption of negligence on the part
of the operator of the hotel. In considering this presumption of negligence the Supreme Court
said: “It is not intended by the above to question the rule that the burden of proof is upon the
plaintiff in cases where the res ipsa loquitur doctrine applies. [Citations omitted.] In such cases,
however, when the plaintiff proves facts that make the doctrine applicable, it devolves on the
defendant to produce evidence to overcome the presumption of negligence. If he does so, the
plaintiff must then produce evidence in refutation. But if he fails to do so, the plaintiff with aid of
the presumption has lifted his burden. If the defendant's evidence is not sufficient to overcome the
presumption, the plaintiff need not offer evidence in refutation. Whether it is sufficient to do so
may be for the court to determine.”

8
Dehmel v. Smith, 200 Wis. 292, 297, 227 N.W. 274 (1930).

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FACTS THAT NEED NOT BE PROVED CONT’D

JUDICIAL NOTICE SECTION 122
The general rule is that facts that are in issue or relevant to the issue in a given case must be proved
by evidence-oral, affidavit, documents, objects etc.
However, a court may take judicial notice of a fact, this presupposes that the fact exists, even
though it has not been established by evidence.
Lord Summer in Commonwealth Shipping Representative v P and O Branch Services (1932)
AC 191 at 212 said: “judicial notice refers to facts which a judge can be called upon to receive and
act upon either from his general knowledge of them, or from inquiries to be made by himself for
his own information from sources to which it is proper for him to refer.”
Section 122 (1) of the EA provides that a fact which the court shall take judicial notice of need
not be proved.
Section 122 (2) on facts which the court shall take judicial notice of:
On section 122 (2) (a), see the case of Oluwadare & Ors v Adekunle (1988) 2 NWLR 723, the
court held that the trial HC was entitled to have taken judicial notice of the Customary Courts Law
of Ondo State and of any subsidiary legislation made under it.
Amata v Omofuna (1997) 2 NWLR 485 93 CA, the appellant commenced an action against the
respondent claiming damages and an injunction for trespass but lost. On appeal, his contention
was that the respondent did not specifically plead the Statute of Limitations (Cap 89 Laws of
Bendel State 1976) relied upon in defence. In dismissing the appeal, the CA held that once there
are sufficient materials either from pleadings or from evidence which showed that the law is
applicable, the judge taking notice of the statute or law would suo motu apply the law or statute to
the set of given facts or factual situation. That the limitation law of Bendel State (Edo State) is one
of such declaration in force.
See section 122(3) in all cases in subsection (2) of this section, and also on all matters of public
history, literature, science or art, the court may resort for its aid to appropriate books or documents
of reference. These may be report of previous cases, authoritative work of reference, history book,
dictionaries etc.
See section 122 (4) If the court is called upon by any person to take judicial notice of any fact, it
may refuse to do so unless and until such person produces any such book or document, as it may
consider necessary to enable it to do so.
Note section 122 (2) (L) and section 17 of Judicial Notice of Customs.
Section 17: Judicial Notice of Customs:
17. A custom may be judicially noticed when it has been adjudicated upon once by a superior court
of record.

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Section 122 (2) The court shall take judicial notice of-
(L) all general customs, rules and principles which have been held to have the force of law in any
court established by or under the Constitution and all customs which have been duly certified to
and recorded in any such court;
Section 17 is an innovation in the new Act, it provides that a custom may be judicially noticed
when it has been adjudicated upon once by a superior court of record. Under the old law, the courts
were not clear in holding whether one single adjudication was sufficient to become judicially
noticed or whether there was need for several judicial affirmation of the custom, it may have been
acted upon by a superior court to an extent.
Cole v Akinyele (1960) 5 FSC 84, The Federal Supreme Court relying on the provision of
section 14 (2) and acting on a single decision of Jibowu J (as he then was) accepted the Yoruba
customary law of paternity as judicially noticed.
Olabanji v Omokewu (1992) 7 SCNJ, Wali JSC said, a custom can only be judicially noticed
after it had been considered, accepted and applied in many decisions.
It has been submitted, which I agree with that the new section 17 does not contradict the existing
decisions of the appellate courts, but only gives statutory pedestal to the views of their Lordships
that in appropriate instance, one judicial affirmation may suffice. Since section 17 uses the word
‘may’, it means that the court is not bound to accept one judicial application of a custom as
sufficient in every case to ground judicial notice. It will depend on the facts and circumstances of
each case. (Hon. Justice Akinyemi, The Evidence Act 2011-An Appraisal).
The courts have extended the meaning of judicial notice to some facts which the courts may take
notice of without conducting any inquiry. These facts are too notorious to be subject of serious
dispute. Such as
1. That a post card is an undisclosed document which can be read by anyone in the course of
post Huth v Huth (1915) 3 KB 32
2. That two weeks is too short a period of human gestation (R v Luffe 103 ER 193) and that
the normal gestation period is about nine months (Preston-Jones v Preston-Jones (1915)
AC 391.
3. The court may take judicial notice of habits of people…Yinusa Bakare v Rasaki Ishola
(1959) NWLR 106. The defendant had said to the plaintiff during an altercation between
them which preceded a fight in the public some words like “you are a thief, ex-convict, you
have just come out of prison”. The court held that they are mere words of abuse which no
one takes seriously.
4. Rotimi Williams v West African Pilot (1961) ANLR 686, in an action for libel contained
in the defendant newspaper, it was held that the court would take judicial notice that West
African Pilot newspaper is a national daily in the country and it exercised immense
influence on its readers everywhere.

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WHAT IS JUDICIAL NOTICE?

Judicial Notice refers to facts, which a judge can be called upon to receive and to act upon, either
from his general knowledge of them, or from inquiries to be made by himself for his own
information from sources to which it is proper for him to refer. See Commonwealth Shipping
Representative v P.O.Branch Services (1923) AC 191 at 212; Amaechi v INEC & Ors (2008)
LPELR-446 (SC).
Judicial Notice also means the court accepting a fact or law without need for proof. However, a
Court shall not take judicial notice of a fact that is required to be proved by evidence.
Where the Court takes judicial notice of a fact, proof is no longer necessary. This is so because
judicial notice takes the place of proof but it is not conclusive. A party who wishes to dispute the
fact must provide evidence. See Joseph v State (2011) LPELR-1630.
Section 122 of the Evidence Act, 2011 provides for facts which the court must take judicial notice
of and which need not be proved.
Section 122 (1) states that no fact of which the court shall take judicial notice under this section
need be proved.
Section 122 (2) (a) – (m) of the Evidence Act, 2011 provides a list of facts which the Court must
take judicial notice of. However, it should be noted that this list is not exhaustive.
The use of the word ‘‘shall’’ in s. 122 (2) imposes an obligation/legal duty on the Court. See the
case of Ifezue v Mbadugha (1984) SCNLR 84.
The Court has a duty to take judicial notice of all laws or enactments and any subsidiary legislation.
See the case of INEC v ETENE (2013) LPELR- 22108.
The Court is bound or guided to take judicial notice of public festivals, feasts and holidays notified
in the Federal Gazette or fixed by an Act. S 122 (2) (g) and Auto Import- Export v Adebayo
(2003) FWLR (Pt.14) 1686.
The Court can take judicial notice of the creation of a new local government. See Ogunleye v
Aina (2011) 3 NWLR (Pt.1235) 479. However, the Court cannot take judicial notice of the date
of creation of the Local Government. The Official Gazette containing the information must be
tendered in evidence. See Our Line Ltd v S.C.C Nig Ltd (2009) All FWLR (Pt.498) 210; Rikichi
v Gambo (2019) LPELR-47676.
The Court will readily take judicial notice of its judgments, records and proceedings. See
OSAFILE & ANOR v ODI & ANOR (1990) LPELR-2783; AGBAREH v MIMRAH (2008)
ALL FWLR (Pt.409) 559.
A Court will take judicial notice of documents and processes in its file. See Military Gov of Lagos
State v Adeyiga.
A Court cannot take judicial notice of Bank rates issued in Central Bank of Nigeria circulars, there
must be evidence of it. See Daniel Holdings Ltd v UBA Plc (2005) LPELR-922.

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Section 122 (3) provides that in all cases in subsection (2) of this section and also on all matters
of public history, literature, science or art, the court may resort for its aid to appropriate books or
documents of reference.
In other words, the court can utilise appropriate reference materials to solidify its position flowing
from judicially noticeable facts in Section 122 (2) of the Evidence Act, 2011. See Orugbo v Una
(2002) FWLR (Pt.127) 1024.
Note however that under Section 122 (4) of the Evidence Act, 2011, the court may refuse to take
judicial notice of any fact unless and until such person calling upon it to take judicial notice
produces such book or document, as it may consider necessary to enable it (the Court) to do so.
See MANTEC WATER TREATMENT NIG. LTD v PETROLEUM (SPECIAL) TRUST
FUND (PTF) (2008) ALL FWLR (PT.439) 499; F.R.N v NWOSU (2016) 17 NWLR (PT.1541)
226.
Section 124 (1) of the Evidence Act, 2011 provides that proof shall not be required of a fact, the
knowledge of which is not reasonably open to question and which is –
(a) common knowledge in the locality in which the proceeding is being held, or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be
questioned.
(2) The court may acquire, in any manner it deems fit, knowledge of a fact to which subsection (1)
of this section refers and shall take such knowledge into account.
(3) The court shall give to a party to any proceeding such opportunity to make submission and to
refer to a relevant information in relation to the acquiring or taking into account of such knowledge,
as is necessary to ensure that the party is not unfairly prejudiced. See OGAR v ILOETOMMA
(2015) LPELR-40694
Judicial notice will be taken of the following notorious facts:
1. The number of days in a particular month of the year and the fact that a particular day was
a Sunday. Olatunji v Waheed & Ors (2010) LPELR-4754.
2. That there was a civil war in Nigeria which ended in 1970. Wachukwu v Wachukwu
(Unreported).
3. That a highway such as the Lagos- Ibadan Expressway is a Federal Highway under the
Federal Highways Act, 1971. See Amusa v State (2001) LPELR-6953.
4. That a Pistol is a lethal weapon and therefore capable of killing a human being. Iden v
State (1994) LPELR-14608.
5. That the value of the Naira fluctuates every now and then. Doherty & Anor v Sunmonu
& Ors (2018) LPELR- 46725.
6. That vulgar abuse is rampant among Nigerians and cannot be the basis for an action for
defamation. Bakare v Ishola (1959) WRNLR 106.

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7. That gestation period for humans normally lasts for 9 months. Preston-Jones v Preston-
Jones (1951) AC 391.
8. That a University exists for the acquisition and advancement of knowledge. Re: Oxford
Poor Rate (1857) E & B 184.
Practice Question
What is the distinction between notorious facts that the court can on its own judicially notice and
facts that the parties have to prove?
Further Reading
Read the following cases:
INEC v ASUQUO (2018) 9 NWLR (Pt.1624) 305
VESE v WAIFEM (2018) 2 NWLR (Pt.1603) 336
MAITUMBI v BARAYA (2017) 2 NWLR (Pt.1550) 347

03/03/2020 Dr OGUNIRAN
ESTOPPEL / RES JUDICATA
Estoppel under evidence has two legs:
1. Res Judicata (Estoppel per rem judicatam) or Record/Judgment Estoppel. This is
provided for in section 173
S173: Judgment conclusive of facts forming ground of judgement.
173. Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in
the case, actually decided by the court, and appearing from the judgment itself to be the ground on
which it was based; unless evidence was admitted in the action in which the judgment was
delivered which is excluded in the action in which that judgment is intended to be proved.
Interpreting this was Galadima JSC in Makun v Federal University of Technology, Mina “wildly
couched and confusing as it is, the section (Section 173) otherwise called res judicata is a legal
maxim aimed at bringing an end to litigation and ensuring that rights of litigants are set to rest …it
is to ensure that no one is proceeded against the second time if it is proved that the present action
is for the same cause which has been decided by a court of competent jurisdiction”.
This further has two legs: Cause of Action Estoppel and Issue Estoppel.
PER ADEKEYE, J.S.C, in Makun v FUT Minna: “Estoppel per rem judicatam or estoppel
of record arises where an issue of fact has been judicially determined in a final manner between
the parties or their privies by a court or tribunal having jurisdiction in the matter and the same issue

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comes directly in question in subsequent proceedings between the parties or their privies. It
effectively precludes a party to an action, his agents and privies from disputing as against the other
party in any subsequent suit, matters which had been adjudicated upon previously by a court of
competent jurisdiction between him and his adversary involving the same issues. Adone v.
Ikebudu (2001) 14 NWLR Pt.733 Pg.385. Ukaegbu v. Ugoji (1991) 6 NWLR Pt.196 Pg.127,
Ezeudu v. Obiagwu (1986) 2 NWLR Pt.21 Pg.208. Osunrinde v. Ajamogun-(1992) 6 NWLR
Pt.246 Pg.156. Iga v. Amakiri (1976) 11 SC 1, Udeze v. Chidebe (1990) 1 NWLR 3 (Pt.125) 141,
Lawal v. Dawodu (1972) 1 ALL NLR Pt.2 Pg.270. Ezewani v. Onwordi (1986) 4 NWLR Pt.33
Pg.27, Fadiora v. Gbadebo (1978) 3 SC 219.
There are two categories of estoppel per rem judicatam. They are –
(1) Cause of Action Estoppel -This precludes a party to an action from asserting or denying as
against the other party, the existence of a particular cause of action-the non-existence or existence
of which has been determined by a court of competent jurisdiction in a previous litigation between
the same parties. This is because it is against the rule of public policy for anyone to be vexed twice
on the same ground and for one and the same cause of action and or the same issues. It is also an
application of the rule of public policy that there should be an end to litigation. In appropriate case,
the parties affected are estopped from bringing a fresh action before any court on the same cause
and on the same issues already decided or pronounced upon by a court of competent jurisdiction
in a previous action.
(2) Issue Estoppel – The rule being that once one or more issues have been raised in a cause of
action and distinctly determined or resolved between the same parties in a court of competent
jurisdiction, then as a general rule, neither party nor his agent or privy is allowed to relitigate that
or those decided issues all over again in another action between the same parties or their privies
on the same issues. Achemba v. Odiese (1990) 1 NWLR Pt.125 Pg.165 Omokhafe v. Ezekhome
(1993) 8 NWLR Pt. 309 Pg.58, Balogun v. Adejobi (1995) 2 NWLR Pt.75 Pg.131, Lawal v.
Dawodu (1972) 1 ALL NLR Pt.2 Pg.270, Ezewani v. Onwurdi (1986) 4 NWLR Pt.33 Pg.27,
Adone v. Ikebudu (2001) 14 NWLR Pt.733 Pg.385”
2. Non-Record or Non-Judgment Estoppel. This is provided for in section 169
S169: Estoppel
169. When one person has either by virtue of an existing court judgment, deed or agreement, or by
his declaration, act or omission, intentionally caused or permitted another person to believe a thing
to be true and to act upon such belief, neither he nor his representative in interest shall be allowed,
in any proceeding between himself and such person or such person's representative in interest, to
deny the truth of that thing. This may include estoppel by conduct etc.
This distinction was drawn Per Babalakin JSC in UKAEGBU V UGOJI where the SC adopting
YOYE v OLUBODE, held “It strikes us that, somehow, there is still the tendency on the part of
counsel to overlook the distinction between estoppel (Non-Record or Non-Judgment) and the
plea of res judicata (Record or Judgment Estoppel). From time to time, attention has been drawn
by this court to such distinction in a number of cases. We think that, it is desirable that we should

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once more restate this aspect of the law. Estoppel is an admission, or something which the law
views as equivalent to an admission. By its very nature, it is so important, so conclusive, that the
party whom it affects is not allowed to plead against it or adduce evidence to contradict it. Res
judicata on the other hand, operates not only against the party whom it affects, but also against
the jurisdiction of the court itself. The party affected is estopped per rem judicatam from
bringing a fresh claim before the court. At the same time, the jurisdiction of the court to hear such
claim is ousted.”
Breakdown analysis of all, below.
ADMISIBILTY OF JUDGEMENT CONSTITUTING RES JUDICATA
Sections 173 and 174 of the Evidence Act
S173: Judgment conclusive of facts forming ground of judgement.
173. Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in
the case, actually decided by the court, and appearing from the judgment itself to be the ground on
which it was based; unless evidence was admitted in the action in which the judgment was
delivered which is excluded in the action in which that judgment is intended to be proved.
S174: Effect of judgment not pleaded as estoppel.
174. (1) If a judgment is not pleaded by way of estoppel it is as between parties and privies deemed
to be a relevant fact, whenever any matter, which was or might have been decided in the action in
which it was given, is in issue, or is deemed to be relevant to the issue in any subsequent
proceeding.
(2) Such judgment is conclusive proof of the facts which it decides, or might have decided, if the
party who gives evidence of it had no opportunity of pleading it as an estoppel.
Galadima JSC in Makun v Federal University of Technology, Mina (2011) 6-7 SC pt V 32 at
85 “wildly couched and confusing as it is, the section otherwise called res judicata is a legal
maxim aimed at bringing an end to litigation and ensuring that rights of litigants are set to rest
…it is to ensure that no one is proceeded against the second time if it is proved that the present
action is for the same cause which has been decided by a court of competent jurisdiction”.
So, what is res judicata and issue estoppel?
See UKAEGBU V UGOJI (1991) 6 NWLR (pt 196) 127 where the SC adopting YOYE v
OLUBODE, Per Babalakin JSC: “It strikes us that, somehow, there is still the tendency on the
part of counsel to overlook the distinction between estoppel and the plea of res judicata. From time
to time, attention has been drawn by this court to such distinction in a number of cases. We think
that, it is desirable that we should once more restate this aspect of the law. Estoppel is an
admission, or something which the law views as equivalent to an admission. By its very nature, it
is so important, so conclusive, that the party whom it affects is not allowed to plead against it or
adduce evidence to contradict it. Res judicata on the other hand, operates not only against the
party whom it affects, but also against the jurisdiction of the court itself. The party affected is

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estopped per rem judicatam from bringing a fresh claim before the court. At the same time, the
jurisdiction of the court to hear such claim is ousted.”
AJAKAIYE v MILITARY GOVERNOR OF BENDEL STATE (1993) 9 SCN (pt II) 242 the SC
held that issue estoppel concerns an issue or issues already determined in a previous litigation, in
which case the litigation may not have come to end, cause of action estoppel or estoppel per rem
judicatum appears only where there is a final decision on the matter.
Conditions for Res Judicata
(a) The parties (or their privies) must be the same in the present case as well as the previous
case
(b) The issues and subject matter in both suits must be the same
(c) The decision in the previous suit must have been given by a court of competent jurisdiction
and
(d) The previous decision must have finally decided the issues between the parties. See
AYUYA v YONRIN (2011) All FWLR (pt 583) 1842 to be proved concurrently.
In Makun v FUT Minna, the facts of the case of the appellants are that:
(1) Five representatives of the plaintiffs signed an Agreement appointing the solicitors to recover
the amount of compensation payable to them
(2) The agreement empowered the solicitors to recover the said amount vide all necessary steps
including court action.
(3) That the valuers appointed by the university made a valuation of N18.89m as the amount
payable to the plaintiffs as compensation
(4) That out of this amount the solicitors recovered and paid to the plaintiffs the sum of N5.6m to
leave a balance of N13.29m.
(5) That having waited in vain for the said balance, the plaintiffs made enquires and were informed
that the solicitors had, at a meeting held on 7/08/84 waived the balance on behalf of the plaintiffs.
The had previously in two separate civil suits sought to enforce their ‘right’ and claim the
compensation and also for the court to decide whether their representative (solicitor) had the right
to waive N13.9 of their compensation. The court decided on those issues, declining jurisdiction
based the provisions of Land Use Act in Sections 29, 30 and 50. It was held that the solicitor had
the right to waive the client’s rights. The Appellants filed this third suit, it was dismissed at both
the TC and CA for res judicata, a further appeal to the SC was also dismissed.
Galadima JSC in Makun v FUT, Minna “wildly couched and confusing as it is, the section
otherwise called res judicata is a legal maxim aimed at bringing an end to litigation and ensuring
that rights of litigants are set to rest …it is to ensure that no one is proceeded against the second
time if it is proved that the present action is for the same cause which has been decided by a court
of competent jurisdiction.

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In this regard, the law is firmly established that for the plea of estoppel per rem judicatam to
succeed, the party relying on it must provide that:
1. the parties or their privies are the same in both previous and present proceedings;
(Sameness of Parties)
2. the claim or the issue in dispute in both proceedings is the same; (Sameness of Issues)
3. the res or subject matter of the litigation in the two cases is the same; (Sameness of
Subject-matter)
4. the decision relied upon to support the pleas of estoppel per rem judicatam must be valid,
subsisting; (Valid and subsisting decision) and
5. the court that gave the previous decision relied upon to sustain the plea must be a court of
competent jurisdiction. (Decision by court of competent jurisdiction)”
It should be raised by the defence, but occasionally too by the plaintiff
Used as a shield… AYUYA v YONRIN
Party relying must produce an admissible copy of the judgment, appellate judgment and not mere
affidavit…USMAN v KUSFA (1997) 1 SCJN 133.
AJAO v AJAO (1987) 12 SC…where a litigant is challenging the validity of a judgment relied
upon by his opponent as res judicata, it is necessary for him to lead evidence to establish such
invalidity. It is not sufficient merely to allege that the judgment is a nullity. There must be evidence
ex facie to show that the court lacked jurisdiction.
How do courts determine res judicata?
MAKUN v FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA, Adekeye JSC in
determining whether the issues, the subject matter of the two actions and the parties are the same,
the court is permitted to study the pleadings, the proceedings and the judgment in the previous
action. It is entirely a question of fact whether the parties and their privies, the facts in issue and
the subject matter of the claim are the same in both the previous and the present suits. The plea of
res judicata applies in special cases, not only on points upon which the court was actually required
by the parties to form an opinion and pronounce a judgment but to every point which properly
belonged to the subject matter of litigation and which the parties exercising reasonable diligence
might have brought forward.
AG of Nasarawa State v AG Plateau State (2012) 10 NWLR (pt 1309) 419 at 465-466 SC. The
SC said “where the plea of estoppel per rem judicatam is raised, the court in determining whether
the issues, the subject matter of the two cases and the parties are same is permitted to study the
pleadings, the proceedings and the judgment in the previous proceedings. The court may also
examine the reasons for the judgment and other relevant facts to discern what was in issue in the
previous case. It is therefore a question of fact whether the parties and their privies, the fact in
issue and the subject matter of the claim are the same in both the previous and present case.”
Note that once a plea of res judicata is raised, the court before which it is raised is under a solemn
duty to deal with it as it goes to jurisdiction. See Agbogunleri v Depo (2008) All FWLR (pt 408)

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240 SC. In Jimoh v Akande (2009) AFWLR (pt 468) 209 SC the Supreme Court held that where
the principle of this doctrine applies to the plaintiff’s case, it would serve no useful purpose for the
plaintiff to continue to lead further evidence in the case, hence if the plea is moved by the
defendant, the court can lawfully dismiss the case in limine without having to hear oral evidence
at all from the defendant.
It must also be specifically pleaded see Jimoh v Akande (supra), each of the ingredient must be
established and not left to inference Olaniyan v Oyewole (2011) All FWLR (pt 589) 1076 CA.
Conditions
1. The parties (or their privies) must be the same in the present case as well as the
previous case (Sameness of Parties)
The SC per Oguntade JSC held in Omiyale v Macauley that “where respondents did not know
about the suits and allowed their battle to be fought on their behalf by another-whether for the
purpose of estoppel per rem judicatum, 'party' means not only a person named as such, but also
one who being cognisant of the proceedings and of the fact that party is professing to act in his
interest allows his battle to be fought by that party intending to take the benefit of the championship
in the success relevant considerations.”
The court will consider the entire former proceedings. Ayeni v Elepo (2007) All FWLR (pt 383)
71 CA it was held that for the purpose of estoppel per rem judicatum, party means not only a
person named as such, it includes a person cognisant of the case and the party is acting in his
interest, allows his battle to be fought by that party and is expected to benefit from the outcome of
the case.
ABDULLAHI, J.C.A. (Delivering the Leading Judgment): "Now, it is settled by a plethora of
decided authorities that for the defence of Res-Judicata to be successfully invoked the following
ingredients must be present:
1. That the parties or their privies involved in both the previous and present cases are the
same.
2. That the claim or issues in dispute in both cases are the same,
3. That the res or subject-matter of the litigation in both cases are the same.
4. That the decision relied upon to support the plea is valid, subsisting and final; and
5. That the court gave the previous decision relied upon to sustain the plea is a court of
competent jurisdiction.
Learned Counsel for the Appellant submitted quite copiously that that they have succeeded in
establishing all the ingredients stated (supra). The question to be asked at this stage is this, can it
be said from the processes filed before the court in this case that the parties are the same in order
to sustain a defence of Res Judicata. To answer this question, recourse had to be made to the record.
In the present suit the parties, are clearly stated on pages 1, 3 and 10 of the record. The parties in
the previous case are stated on pages 17 and 29 of the record.

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Needless to say, the plaintiffs in suit No HAD/64/2000 are the Attorney-General and
Commissioner for Justice, Ekiti State, the Secretary, Ijero Local Government and Oba E. O. Ayeni,
the Olupoti of Ipoti Ekiti, while the defendants in Suit No. HIJ/17/2002 are Oba Elijah Oladele
Ayeni, the Olupoti of Ipoti-Ekiti, the Chairman, Ijero Local Government, Ijero-Ekiti, the Secretary,
Ijero Local Government Ijero Ekiti.
It is instructive to note that since the actions were brought in a representative capacity it is not only
the named plaintiffs who are parties but others who are unnamed but whom the plaintiffs
represented are also deemed to be parties.
However, the defendants are not the same as can be gleaned from the names of the Defendants
contained in the two processes under consideration.
Next but not the least, question to be asked is whether the issues are the same. Learned Counsel
for the Respondents vehemently submitted that the issues are not the same. Learned Counsel
submitted that the issue in suit No. HAD/64/2000 is on purported appointment or elevation of the
1st Defendant as the prescribed authority over the Obalaaye of Ejiyan. The instant case, however
has to do with the Constitutional right of Ejiyan people to self-determination, particularly with
regard to or concerning the issue of who should be their king.
I pause here to state that it is appropriate at this juncture to reproduce the Claims/issues of the
parties in the two suits under consideration with a view to finding out whether the claims/issues
are the same. In suit No. HAD/64/2000, it is stated inter alia as follows:
“The plaintiffs take this action claiming as follows:
i. Declaration that the Olupoti is not the prescribed authority over the Obalaaye Chieftaincy
of Ejiyan, in Ipoti – Ekiti.
ii. Declaration that the purported act of the Ondo State Government, (now Ekiti State) in
making the Olupoti of Ipoti Ekiti the prescribed (sic) over the Obalaaye of Ejiyan”
community, if it has been done, without consultation with the Ejiyan community is against
the fundamental human rights of the Ejiyan Community the age old custom, and traditional
agreement between the Ipoti community the Ejiyan community, and the owa community
and therefore, unconstitutional illegal unlawful, null and void and against the dictates of
natural justice.
iii. Declaration that by Ipoti/Ejiyan native law and custom the Obalaaye is the person entitled
to appoint and install all traditional chiefs in Ejiyan without prior consultation.
iv. An order of perpetual injunction restraining the Olupoti, 3rd defendant from interfering in
any way whatsoever with the appointment of traditional of traditional chiefs in Ejiyan.
v. A mandatory injunction compelling the first and second defendants to make the Obalaaye
the prescribed authority over Ejiyan in Ipoti Ekiti in the interest of justice, peace and order
and good government and also in the interest of natural justice.”
In suit NO.HIJ/17/2002, the instant suit, the plaintiffs claim from the defendants either jointly or
severally as follows:

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i. A Declaration that the Obalaaye of Ejiyan is the head chief and or Oba of Ejiyan quarters
in Ipoti-Ekiti.
ii. A declaration that it is the prerogative of the Ejiyan people and chiefs to select, appoint and
instal an Obalaaye of Ejiyan in accordance with their age-long customs and traditions.
iii. a declaration that no Olupoti in history had ever appointed or installed an Obalaaye of
Ejiyan.
iv. A declaration that the 1st defendant is not a prescribed authority over the Obalaaye
chieftaincy.
v. A declaration that the 2nd and 3rd defendants either alone or in concert with the 1st
defendant have no business with or role to play in the appointment and installation of an
Obalaaye apart from being merely informed of such an appointment and installation after
the completion of same by the Ejiyan people and Chiefs.
A hard look at the claims of the parties produced (supra) reveals the fact that the issues at stake
are the same. Learned Counsel for the Respondents’ argument that in the instant case, the Ejiyan
people are fighting for self-determination under the Constitution of the Federal Republic of Nigeria
is hair splitting argument which I am not prepared to accept.
Be that as it may, in view of the fact that for a plea of Res Judicata to avail the person raising
it, all the ingredients stated elsewhere in this judgment must be met, this issue’ having held
that parties are not the same must be resolved in favour of the Respondents and against the
Appellant.
The next issue for determination is whether suit No. HIJ/17/2002 constitutes an abuse of process
of court-Grounds 4 and 5. Learned Counsel for the Appellant submitted that since the subject
matter, issues and the plaintiffs are the same as in the previous and present suit as held by the trial
court, pages 74, Ls. 16-2, 76 Ls. 8-11, 77 Ls 28-30 of the records and having regard to the
submissions of the Appellant in paragraph 3.01.16 above that, the parties in the previous suit and
the present suit are the same the finding of the trial court that there is a pending appeal to the
Supreme Court against the Court of Appeal Judgment CA/IL/18/2001, the institution of the present
suit HIJ/17/2002 constitutes an abuse of court process and therefore the present suit should be
dismissed.
For his part, Learned Counsel for the Respondents submitted that the parties in the previous suit
and the instant one are not the same. They are in fact different. The major claims in both suits are
also different. In the current suit, the major claim is for a declaration that the Respondents have a
right to self-determination, including the right to choose their king without interruption from the
appellant which they have been doing since time immemorial. See Page 7 of the record. In the
former suit, the major claim is a declaration that the purported act of the Ondo State Government
in appointing or making the Olupoti a Prescribed authority over the Obalaaye chieftaincy is
unconstitutional, illegal, null and void. He submitted that there was no abuse of court process
where parties as well as the major claims are different. See Awofewo -vs- Oyenuga (1996) 7
NWLR (PT. 460) Page 360 at 367. In Bendel Feeds & Flour Mills -vs- N.I.M.B. Ltd (2000) 5
NWLR (Pt. 655) Page 29 at 48 B-4.

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In the case of Nnah George Onyeabuchi -vs- Independent National Electoral Commission (INEC)
Abuja and 4 others (2002) 8 NWLR (Part 769) P. 417 at P. 427, the apex court held as follows: “It
is an abuse of the process of court for the plaintiff to litigate again over an identical question which
had already been decided against him. Also, where proceedings which were viable when instituted
have by reason of subsequent events become inescapably doomed to fail, they may be dismissed
as being abuse of the process of the court.”
Again, the apex court held thus: “Where the twin pleas of Res-Judicata and abuse of Court
process are raised in a case, failure of the former does not necessarily lead to a failure of the
latter. It is common to find cases being argued and almost often decided on the basis that if
one doctrine does not apply then another certainly should. In the instant case, even if the
appellant had succeeded on the grounds on which the finding of estoppel that been
challenged the appeal would still have been dismissed as there was no challenge to the finding
that the suit was in abuse of process. (Aruba -vs- Aiyeleru (1993) 3 NWLR (Pt. 280) 126
referred to) (P. 441, paras B – D).”
It is appropriate at this juncture to state that it is not in dispute that the Respondents had filed an
appeal against the decision of the Court of Appeal in suit No. CA/IL/18.2001.
The said appeal, needless to say is an appeal against the decision of Aladejana J of the Ekiti State
High Court, sitting at Ado-Ekiti dated 15th day of February, 2001. in suit No. HAD/64/2000. That
being the case, I am of the considered opinion that since the present plaintiffs have appealed to the
apex court in that case, it is an abuse of court process to have filed case No. HIJ/17/2002 with
identical reliefs. I am of the considered view that instead of filing the present case, the plaintiffs
should have pursued their appeal vigorously in the apex court.
In the case of Onyeabuchi -vs- INEC, (Supra) the apex court further held as follows: “Once a
court is satisfied that any proceeding before it is an abuse of court process it has the power, indeed
the duty, to dismiss it: That is to say that once a court is satisfied that the proceedings before it
amount to abuse of process, it has the right, in fact the duty, to invoke its coercive powers to punish
the party which is in abuse of its process. Such power quite often is exercisable ‘by “‘a dismissal
of the action which constitutes the abuse. (Arubo -vs- Aiyelem (1993) 3 NWLR (Pt. 280) 126
referred to) (Pp. 441-442, Paras G – A; 444, para. F).”
In the light of all that I have said this issue must be resolved against the Respondents in favour of
the Appellant. For avoidance of doubt, I hold with ease that suit No. HID/17/2002 constitutes an
abuse of process of court. The appeal under consideration is pregnant with a lot of merit and it is
hereby allowed."
In Adebayo v Babalola (1995) 7 SCNJ 306 at 326 privy means (a) privy in blood, for example
ancestor/heir; (b) privy in law, testator/executor or administrator; (c) privy in estate
vendor/purchaser.
Dike-Ogu v Amadi (2008) All FWLR (pt 438) 257 at 276 CA Galadima JCA (ahtw) said: I wish
to comment briefly on the legal position of parties as far as this doctrine is concerned. Parties in

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the subsequent action may be privies to the previous action. Privies in law are those who derive
their title from and also claim through that party.
Privies are in three categories or classes:
1. privy in blood
2. privy in law and
3. privy in estate.
The first are blood relations like ancestor/heir; the second and third are executors, administrators,
vendors and purchasers. See COKER v SANYAOLU (1976) 9-10 SC at 203.
AGBOGUNLERI v DEPO (2008) All FWLR (pt 408) 240 SC the Supreme Court concluded that
in transactions relating to land, any person who derives title or takes an assignment from, or is let
into possession by, or otherwise claims or comes in under, the actual representative, is bound by
the same representation and consequent estoppel that binds such actual representative. Therefore,
that in the instant case, because of the contractual relationship that was existing between the
appellant’s predecessors in title and the respondents, the learned TJ was right to have found the
appellant to be in privity of the transaction and bound by the judgment.
See Omiyale v Macaulay (2009) All FWLR (pt 479) 413 SC The Supreme Court interpreted
privy in estate and held that in this case where a party to the present proceedings did not acquire
his title to the disputed land from the party to the former proceedings, and where a party to the
former proceedings had since sold his interest to a 3rd party who then mortgaged it and could not
redeem it, leading to the mortgagee to sell it to the present party’s grandfather, the said latter party
cannot be said to be privy to the original party that long divested itself of the title.
Privies by blood…in what capacities do they apply? DTT Enterprises Nig Ltd v Busari (2011)
All FWLR (pt 563) 1818 SC the SC held that a judgment obtained against a party in his personal
capacity cannot constitute res judicata in a subsequent action against the party in a representative
capacity. However, that a judgment obtained by a party in a representative capacity binds every
member who falls within the group of persons so represented.
2. The issues and subject matter in both suits must be the same (Sameness of Issue
and Res or Subject Matter)
In Madukolu v Nkemdilim, the court noted that it would look at substance rather than form in
ascertaining the subject matter.
See Ikoku v Ekeukwu (1995) 7 SCNJ 180, it was held that since the land in dispute in the present
suit was different from the issue in the previous litigation, the plea of res judicata would not
succeed.
Oyah v Ikalide (1996) 4 SCNJ 112 it was held that where the previous suit was a chieftaincy
dispute while the present one is a land suit, the rule of res judicata did not apply because the subject
matter of litigation was not the same.

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Note that where the subject matter is land, the size of the land must be the same in both suits.
Adesina v The Commissioner Ifon-Ilobu Boundary Commission, Osogbo (1996) 4 SCNJ 112
the Supreme Court held that where the area of land in the previous litigation is greater than the
one in the present suit, the subject matter cannot be said to be the same, hence a plea of res judicata
will not avail the party seeking to rely on it.
Odutola v Oderinde (2004) All FWLR (pt 217) 615 SC the Supreme Court held that since in
the instant case, the area of land claimed was 70, 487 acres while the one in the previous suit was
merely 3 acres, the subject matter in both suits was not the same, hence the plea of res judicata
raised could not succeed.
Note situations where the subject matter in the previous proceeding may have changed
slightly at the time the present suit is being instituted. See Afolabi v Governor of Osun State
(2003) FWLR (pt 175) 411 SC. In that case, the SC had already finally decided the chieftaincy
tussle sought to be litigated upon again in the present suit. The previous decision was based on the
1957 Chieftaincy Declaration. The present (1986) Chieftaincy Declaration was substantially the
same with the 1957 one, the only slight difference being that the Iwode Ruling House was listed
as number 4 in the previous Declaration while the 1986 Declaration placed it as number 2. The
SC held that in spite of the slight change, the issues in the two suits were the same and could not
be litigated upon i.e., filling of vacancy in the stool of Olobagun of Obagun while the issue in
contention in both suits was the inclusion or exclusion of the Iwode Family in the list of the ruling
houses eligible to present a candidate for the stool.
See Agbonmagbe Bank v CFAO (1966) CFAO had sued one of its customers for issuing them
bounced cheques. Even though judgment was in favour of CFAO, the latter was unable to recover
its money. CFAO then sued the bank in tort for failing to return the bounced cheques on time. The
SC dismissed the plea of res judicata held that the suit by CFAO against the customer was in
contract, hence judgment obtained did not preclude them for suing the bank in tort.
See Ezeanya v Okeke (1995) 4 SCNJ 60, a case of criminal conviction for assault and felling of
a tree on the disputed land, res judicata will not apply if the subsequent litigation is for declaration
of title, subject matter not the same.
Olukoga v Fatunde (1996) 9-10 SCNJ 1, a previous litigation for compensation over land is not
the same as a subsequent suit for declaration of title to the same land, as the subject matters, being
different in the two litigations, res judicata will not apply.
3. The decision in the previous suit must have been given by a court of competent
jurisdiction (Court of Competent Jurisdiction)
The court must be properly constituted, substantively capable and correct procedure followed in
instituting, handling and determining the suit-Madukolu v Nkemdilim.
The court that delivered the previous judgment must have been a court of competent jurisdiction.
In Agbogunleri v Depo (supra), Muhammad JSC said, the third requirement for the plea of
estoppel by judgment to be sustained is that same issue must have been adjudicated by a court of
competent jurisdiction. A court or tribunal is said to be of competent jurisdiction all respect and

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has authority to adjudicate disputes in that court. According to him, the first High Court, the one
presided by Desalu J came about by constitutional provisions. So also, the appointment of Desalu
as a judge, thus, whatever decision is handed by that court is a decision given by a court of
competent jurisdiction and remain binding on the parties.
Courts established by law and not merely an administrative tribunal of inquiry. Balogun v Ode
(2009) All FWLR (pt 358) 1050 at 106-1066 SC held that the decision relied upon by the
respondents is that of a Tribunal of Enquiry and not a court of competent jurisdiction. The
respondents herein did not sit in the circumstance to satisfy the above conditions. Moreover, they
did not even exhibit the said decision to the affidavit in support for the court to see and determine
its nature as is incumbent on it, and without it, it is as good as assuming that there was in fact no
decision available to avail the respondents of the defence raised.
The previous judgment must not have been null for any reason. See Udofe v Aquaisua (1973) All
NLR 53 SC, it was held by the SC that a previous judgment of a Native Court obtained by one of
the parties in the absence of his opponents and without evidence being called by them in support
of the claim was a nullity, hence could not support the plea of res judicata raised.
In Board of Customs and Excise v Kalu, the defendant had been prosecuted and fined in a
magistrate in relation to a customs offence. Court held it was not within the jurisdiction of the
Magistrate under the Customs and Excise Management Act to entertain the suit. The Supreme
Court then went further to note that an order made without jurisdiction cannot amount to res
judicata.
4. The previous decision must have finally decided the issues between the parties.
(Final Decision)
The previous decision must be a final judgment. In Ezenwa v Kazeem (1990) 5 SCNJ 165, the
SC held that a judgment is only final when it was obtained in an action by which an existing
liability of the defendant to the plaintiff was determined on merit. In other words, that such a
judgment should be the one that confers rights that are capable of being enforced.
Azazi v Adhekegba (2009) All FWLR (pt 484) CA, the court quoted Spencer-Bower and Turner
on the Doctrine of Res Judicata 1969 ed thus, a judicial decision is deemed to be final when it
leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective
and capable of execution and is absolute, complete and certain and when it is not lawfully subject
to subsequent decision, review or modification by the tribunal which pronounced it.
Distinguish mere interlocutory ruling cannot create res judicata …Omnia Nig Ltd v
Dyktrade (2007)
Honda Place Limited v Globe Motors Ltd (2005) 14 NWLR (pt 945) 273 SC, the Supreme
Court held that a judicial decision is said to be final when it leaves nothing to be judicially
determined or ascertained thereafter, in order to render it effective and capable of execution, and
that it is one that is absolute, complete and certain; and it is one that is not lawfully subject to
subsequent rescission or modification by the tribunal that pronounced it. The Apex court however
held that finality cannot be attributed to a judicial decision declaratory or directory that is so

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uncertain and ambiguous that it has left the parties in doubt as to the exact nature of their liabilities
or as to the manner in which the decision is to be complied with or enforced. The SC concluded
that a consent judgment is as good as any other final judgment that results from a contested
hearing, hence could create res judicata.
A previous consent judgment will not bind a 3rd party who is not part of the consent. See Ebueku
v Amola (1988) 3 SC 360, the previous judgment relied upon as creating estoppel by record is a
consent judgment. There is the judgment of this court in Talabi v Adeseye 1977 to the effect that
no consent judgment or order has the slightest operation or effect whether by way of estoppel or
otherwise against any third person or against any of the parties who is not shown to have consented
to it. The 1st Defendant is evidently a third party to the proceedings in which the previous consent
judgment was given. For he was not a named party in the case nor was it ever shown that he ever
consented. In the circumstances, the previous judgment, a consent judgment in Suit No MK/115/65
cannot have, in the words of the decision in Talabi v Adeseye (supra) the slightest operation or
effect whether by way of estoppel or otherwise against him.
It will not apply where the previous case was struck out …. Commerce Assurance vs Ali (1992)
4 SCNJ 145.

RES JUDICATA IN ARBITRATION TRIBUNALS

See Agala v Egwere (2010) All FWLR (pt 532) 1609 SC, the Supreme Court held that by the
provisions of section 6 (1) and (5) of the 1999 Constitution, it is in the courts and not in non-
judicial bodies that judicial powers of the Federal Republic are vested. But that it is open to parties
to choose whether to follow the normal channel of the court system for determination of any
controversy or to submit the matter voluntarily to a non-judicial body for a decision. The conditions
precedent to a binding arbitration are:
(a) That there was a voluntary submission of the dispute by the parties to the non-judicial body
(b) That the parties agreed to be bound by the decision of the non-judicial body as final
(c) That the decision was in accordance with the custom of the people or their trade or business
and
(d) That the arbitrators reached a decision and published their award
ISSUE ESTOPPEL
It arises when or where an issue has been determined and one of the parties to the previous
litigation now seeks to introduce such issue for determination in a subsequent litigation.
See Adigun v The Sec, Iwo Local Government (1999) 8 NWLR (pt 613) 30 SC the Supreme
Court held that it constitutes an abuse of court process for a party to disregard a previous decision
of the Supreme Court on a matter and seek to relitigate the same issue in a subsequent suit.
According to Belgore JSC what the plaintiffs are claiming is no more than the original claims that
culminated in the appeal that was finally decided in 1987 in this court on the 20th day of March,
1987. It seems the suit was meant to pre-empt issuance of a new declaration based on the Bolalne

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Awe’s Administrative Panel. The “accrued right” the plaintiffs claimed was to the effect that only
Ogunmakinde Ande Ruling House was the sole Ruling House, a matter finally decided by the court
in 1987. If all the new suit was meant to achieve was to maintain Ogunmakinde’s Ande’s family
as the sole Ruling House, it was certainly an abuse of court process because it disregarded the clear
pronouncement of the court that it was not the sole Ruling House. It is for this reason of abuse of
court process that I on the 23rd day of February, 1999 dismissed this appeal.
See Ebba v Ogodo (2000) 6 SCNJ 100
(a)The parties must be the same in the previous as well as the present proceeding;
(b) The same question that was decided in the previous action must arise in the present
action in respect of the same subject matter and;
(c) a court of competent jurisdiction must have determined the issue in a final manner
Olufeagba v Abdul Raheem (2010) All FWLR (pt 512) 1033 SC the SC held that a plea of issue
estoppel by a defendant is geared at preventing a plaintiff from re-litigating an issue
previously decided in the former suit, hence the parties and subject matter must be the same.
That in the instant case, it was beyond argument that the parties before the Industrial Arbitration
Panel (IAP) were not the same with the parties in this case at the trial court. Also, that the case at
IAP was a trade dispute, while the case at the trial court involved a master and servant relationship
in which the appellants claimed declaratory and mandatory orders that did not fall within the
jurisdiction of the IAP; hence the learned justices of the CA were wrong in finding that issue
estoppel avail the respondents.
In Udot v Obot (1989) 1 NWLR (pt 95) 59 SC, the SC held that the mere raising of an issue in
a previous litigation without a decision thereon will not create issue estoppel.
In Adebayo v Babalola (1995) 7 SCNJ, the SC held that within one cause of action, there might
be several issues raised, which are necessary for determination of the whole cause of action. That
if one such issues has been raised and distinctively determined between the parties, then as a
general rule, neither party is allowed to contest the issue all over again.
Another specie of issue estoppel is that a party is estopped from bringing issues that properly
belonged to one cause of action i.e. in the previous action in a piecemeal. See Ogbogu v
Ugwuegbe (2003) FWLR (pt 161) 1825 SC the SC held that where a given matter becomes the
subject of litigation in, and determination by, a court of competent jurisdiction, the court requires
parties to that litigation to bring forward the entirety of their cases, hence the court will not, except
under special circumstances permit the parties to open the subject of litigation again in issues
which might have been brought forward because the parties had through negligence,
inadvertence or even accident failed to bring them up for such adjudication.

Estoppel by Conduct or Equitable Estoppel section 169

It limits the capacity of a person to, after making another person to shift his or her position to the
person’s detriment, seek to recline from the position he took or to call evidence to the contrary.

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See AG Rivers State v AG Akwa Ibom State (2011) All FWLR (pt 579) 1023 at 1054-1055 SC,
Katsina –Alu CJN, held “the doctrine of estoppel by conduct, though a common law principle
has been enacted into our body of laws as section 151 (now 169) of the Evidence Act…it forbids
a person from leading his opponent from believing in and acting in and acting upon a state of
affairs, only for the former to turn around and disclaim his act or omission. Both the common and
statutory law do not permit this conduct, that is why section 151 (now 169) of the Evidence Act
has used the emphatic phrase “neither he or his representative in interest shall be allowed.
Ude v Osuji (1990) 5 NWLR (pt 151 488, (1998) 10 SCNJ 75 at 22 Onwuegbu JSC held “The
principle of estoppel by conduct is that where one party has by his words or conduct made to the
other a promise or assurance which was intended to affect the legal relation between them and to
be acted upon accordingly, then once the other party had taken him at his word and acted on it,
then the one who gave the promise or assurance cannot afterwards be allowed to revert to the
previous legal relations as if no such promise or assurance has been made by him. He must accept
their legal relation as modified by himself even though it is not supported in point of law by any
consideration, but only his word or conduct.”
See also the High Trees v Central London Property (Development) Trust Co Ltd where the
landlord was estopped from increasing the rent even when during the war the tenant did not move
out, since he promised not to increase the rent.
Section 170: Estoppel of tenant, and of licensee of person in possession.
170. No tenant of immovable property or person claiming through such tenant, shall during the
continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the
beginning of the tenancy a title to such immovable property; and no person who came upon any
immovable property by the licence of the person in possession of it shall be permitted to deny that
such person had a title to such possession at the time when such licence was given.
Alibi v Adeniji, a tenant pays rent to a person as landlord, with full knowledge that he is not the
sole owner of the property, such tenant is estopped from denting the landlord’s title.
Augusto v Joshua, a tenant who after receiving notice of assignment of his landlord’s title pay
rent to the assignee equal to the rent he used to pay to his landlord, is presumed to have made such
payment for all the land the tent held under the assigned tenancy; he is estopped from disputing
the assignee’s title to the property or from claiming anything adverse to that title.
Longe v Ajakaiye, a stranger and his descendants have been permitted to reside on customary
lands for many years, the customary owner of the land and his descendants are estopped by their
conduct from obtaining a decree of possession of the land, although the title of the land remains in
the said customary owner.
It can only be invoked by defendant and not a cause of action for plaintiff…Ude v Osuji
Estoppel by Standing By
The doctrine applies when a party stands by and allows others to fight his judicial battles. He will
be estopped from later trying to contend against the result of the said judicial decision.

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Such party can adduce evidence that he was not aware or had no knowledge of the previous
litigation.
Agency by Estoppel section 171
When a person holds another out as agent though no such agency exists in fact, he will be precluded
from denying the existence of the agent’s authority to act on his behalf, as the relationship creates
agency by estoppel.
ESTOPPEL OF A TENANT: Section 170. Not to deny that his landlord/licensor had (at the
beginning of the tenancy or when the license was given) title/possession (respectively) to the
property-Doe De Bristow v Pegge. Except the landlord’s title has been determined.
ESTOPPEL OF BAILEE/AGENT/LICENSEE: Section 171 EA. Bailee should not deny that
the bailor is entitled to the goods he kept in his possession. Except he was compelled to deliver
possession of the goods to another who had a right to them-Clark v Aide.
AGREEMENT OF THE PARTIES: Ogundiran v Balogun, the parties agreed that the
transaction would be based on native law and customs. Parties were estopped from urging the
application of English law.

BURDEN OF PROOF SECTION 131

Section 131: Burden of Proof:
(1) Whoever desires any court to give judgement as to any legal right or liability dependent on
the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof
lies on that person.
Section 132: On whom burden of proof lies:
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.
The term “burden of proof” has two basic meanings. First, it relates to a burden or obligation of
persuading the court to enter judgment in favour of a particular person. i.e. legal or persuasive
burden. Second, it is used in the sense of the duty to introduce evidence in support or rebuttal of
a specific issue. This is known as evidential burden. See sections 131(1) (2) and 132 of the
Evidence Act 2011 respectively.
See Elemo v. Owolade (1968) NMLR 356, 359. Burden of proof has two distinct and frequently
confusing meanings. It means (a) burden as a matter of law and pleadings, the burden as it has
been called of establishing a case whether by preponderance of evidence or beyond reasonable
doubt and (b) the burden of proof in the sense of introducing evidence. As regards the first meaning
attached to the burden of proof, this cast upon the party whether plaintiff or defendant who
substantially asserts the affirmative on the issue. It is fixed at the beginning of the trial by the state

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of the pleadings and it is settled as a question of law remaining unchanged throughout the trial
exactly where the pleadings never shifting in any circumstances whatsoever.

Burden of Proof in Civil Cases

Section 133: Burden of proof in civil cases:
(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the
party against whom the judgment of the court would be given if no evidence were produced
on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in subsection (1) of this section adduces evidence which ought
reasonably to satisfy the court that the fact sought to be proved is established, the burden
lies on the party against whom judgment would be given if no more evidence were adduced,
and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting
evidence.
According to Onalaja JCA in Elendu v Ekwoaba “it is trite law that in civil cases, the ultimate
burden of establishing a case is disclosed on the pleadings. The person who would lose the case if
on the completion of the pleadings and no evidence is led has the general burden of proof.”
Quite unlike criminal cases, where the burden of proof is on the prosecution. In civil cases the
onus of proof is not fixed. It is determined by rules of pleadings and substantive law. As rightly
observed by-
In Adegoke v. Adibi (1992) S. M. W. L. R. not 242 p. 410 at 423. Per NNAEMEKA-AGU, J.S.C
"But in civil cases, the onus of proof is not as fixed on a plaintiff as it is on the prosecution in
criminal cases. In civil cases, while the general burden of proof in the sense of establishing his
case lies on the plaintiff, such a burden is not as static as in criminal case. Not only will there be
instances in which on the state of the pleadings the burden of proof lies on the defendant but also,
as the case progresses, it may become the duty of the defendant to call evidence in proof or rebuttal
of some particular point which may arise in the case..."
Section 143 of Evidence Act states that where the question is whether any person is the owner of
anything of which one is sworn to be in possession, the burden of proving that he is not the owner
is on the person who affirms that he is not the owner. The presumption has been witnessed with
success on many land disputes’. The effect of the presumption is that a person who is shown to
be in possession of a property is presumed to be the owner of the property until the contrary is
proved by his opponent.
The case of Lawal v. Ijale (1967) N.M.L.R. 156 is the authority for the view that in an action for
declaration of title to Land, where there is admission in the pleadings that a party is in possession
of the Land in dispute, section 143 places the burden of proving ownership on the person who
asserts that the person found in possession is not the owner.

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See also C.O.P. v. Oguntayo (1993) 6 N.W.L.R. pg. 299 pg.259. The Respondent as plaintiff had
sued the appellants for detinue/conversion in respect of a vehicle which he was in possession of
prior to its being impounded by the Appellants. Appellants had claimed that the vehicle belongs
to a thirty party but did not adduce evidence on the identity of the third party. Respondent had
produced purchase receipt and vehicle license to prove his ownership of the vehicle. It was held
applying Section 143 of the Evidence Act, by the S/Court that once the respondent was shown
to be in possession of the vehicle before it was impounded by the Police, he is presumed to be the
owner. The burden is on the appellants to demonstrate that Respondent lacked title and superior
title was in another person. In the words of Kutigi J.S.C. “The Law presumes that the respondent
being the person in possession of the vehicle and (registered too in his name) was the owner until
the contrary was proved (see evidence Act Sec 143) so that until the appellants were able to find
the true owner, the respondent had a better right to possession of the vehicle than the appellants”.
Chime v. Chime (1995) 6 N.W.L.R. pt 404 P.734 The plaintiff/appellant had sued the respondents
for declaratory rights to set aside the power of attorney and the assignment of the property in
dispute. The Respondents gave evidence and also filed a counter claim. The appellants’ neither
testified nor called evidence in support of their claim. Consequently, their case was closed.
Addresses were delivered, Judgement was given in favour of the Respondents. Respondents’
counter claim succeeded but appellants claim was dismissed.
An appeal was filed by the Appellants contending that the trial Judge ought not to have dismissed
prior case. Held: That the Plaintiff/Appellants by failing to call evidence and not discharge the
required Burden of proof, case was rightly dismissed. Achike J. C. A. “In our adjectival law, it is
trite that any person who is desirous to obtain the judgment at any court to any legal right or
liability which is defendant on the existence facts which he asserts must prove that these facts exist
and to that extent it is said that the burden of proof lies on that person see Section 131(1) & (2) of
evidence Act. In Civil cases the burden of proof proving the existence of facts which he asserts
lies on the party against whom judgement of the court would be given if no evidence were
produced on either side regard being had to any presumption that may arise in the pleadings. See
section 133 of the Evidence Act See Babalola v Rufus (2010) All FWLR pt515 p309.
See Ogunsanmi v. C.F (W/A) Furniture, an employer who dismisses his employee for
incompetence has the burden of proving such incompetence on the part of the employee.
According to the court “Incompetency is obviously a ground for summary dismissal (of a Servant)
where a master has dismissed his servant summarily for lack of skill, the onus is on the master to
prove to the satisfaction of the judge that his servant was incompetent”
Animashaun v U.C.H. (1996) N.W.L.R. at 476 is the authority for the view that where an
employer makes demonstration the entitlement of the employee on the ground that the employee
was indebted to the employer, the employer has the burden of establishing indebtedness. The
employer failed to discharge the burden of indebtedness.
Idesoh v. Ordia (1997) 3 NWLR at 491. The Plaintiff claimed damages and trespass to
land and injunction against the Defendant. The Defendant counter-claimed for declaration of title
to Land. According to Adio J.S.C. What is, however involved in the present case is far more than

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mere proof of possession of the Land at the time but trespass was committed on it. Where a
plaintiff claims damages for trespass and injunction and the defendant alleges that the Land
belongs to him, the plaintiff in order to succeed, has to prove not only that he was in possession of
the Land when the trespass was committed but also that his own title to the Land in dispute is
better than that of the defendant. See Amakor v. Obiefuna (1924) 3 Section 62. This is because
in the circumstance title to the Land in dispute is put in issue. See Ogbechie v. Onochie
(1988) 1 NWLR at 70. 370. Therefore, in order to succeed, the appellants in this case has the
burden of proving not only that they were in possession when the alleged trespass was committed
by the Respondents but also that his own title to the Land in dispute was better than that of the
Respondents”.
See Ime Udo-Osoh v. CBN, when an employee complains that his employment has been
wrongfully terminated, he has the onus to place before the court, the terms of employment and the
manner the terms were breached by the employer.
The case at Elias v. Disu 1962 1 AWNLR p.24 is the authority for the view that in cases where
necessary consents appear to had been obtained to the sale of family property, the onus is on the
person challenging the sale on ground of absence of consent to prove that no consent was obtained.
Adenle v. Oyegbade 1967 M.W.L.R. 136. The Land in question as agreed between the parties
was a family Land. While the plaintiff family claimed that it was granted to the defendant for a
limited period, the Defendant claimed that the property had been out rightly given to him Held –
The onus was on the defendant to demonstrate how he acquired absolute grant in his favour.
STANDARD OF PROOF
This refers to the degree of persuasion or weight or degree to which proof must be established. It
is the quality of evidence which a party is supposed to attain in order to prove a case.
Basically, there are two recognized standards of proof i.e. proof beyond reasonable doubt
s135(1) and proof on the preponderance of evidence or balance of probabilities s134. Whilst
the former standard generally applies to criminal cases, the latter generally applies to civil cases.
Nevertheless, instances exist (exceptions) where the applicable standard of proof in criminal cases
will be of the preponderance of evidence and proof beyond reasonable doubt is insisted upon in
civil cases.
What does “beyond reasonable doubt” mean?
Many attempts have been made to define a reasonable doubt. Some of these definitions have
generated problems to courts. The standard of proof is eminently a high one. It however should
not be confused with absolute certainty, or with scientific proof or proof beyond all shadow of
doubt. A useful guideline can be found in dictum of Denning J. (as he then was) in Miller v.
Minister of Pensions (1942) 2 All ER. 372. “The degree is well settled. It need not reach certainty,
but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof
beyond shadow of doubt. The law will fail to protect the community if it admitted fanciful
possibilities to deflect the course of justice. If the evidence is so strong against a man as to have
only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is

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possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing
short of that will suffice”.
In a trial with jury the proper direction is that the jury must be satisfied so that they feel so sure of
the culpability of the accused. Consequently, where the totality of the evidence in a criminal trial
is equivocal in the sense that it is consistent with both the guilt as well as the innocence of the
accused, a verdict of acquittal should be recorded in his favour. If on the whole of the evidence
the court is left is a state of doubt, the onus is not discharged. The prosecution must fail. The
standard of proof makes it incumbent on the prosecution to prove all the ingredients of the offence.
Bakare v. The State (1987) 1 NWLR pt.52 r 579 at 581 per Karibi-Whyte JSC. It is fair to point
out that in a prosecution the judge should be satisfied that the evidence before him is sufficient to
establish the guilt of the accused. This is because the judge who is unbiased umpire of trial can
only determine the standard of proof required from a consideration of the evidence of the
prosecution as against that of the accused. In such a situation as in many others absolute certainty
is clearly unattainable, hence proof beyond reasonable doubt has been taken to mean such degree
of cogency which is consistent with and equivalent to a high degree of possibility. It does not
eliminate the possibility of any doubts whatsoever including remote possibilities.
According to Pat Acholonu JSC in Ibrahim v. The State (1995) 3 NWLR wart 381 at r 47 “The
Law vests the responsibility to prove the accused guilt on the prosecution beyond all reasonable
doubt. It is not part of the system of our Law that the appellant and his co-accused should prove
their innocence. Thus, for evidence to warrant conviction it must exclude beyond reasonable doubt
every other hypothesis than that of the accused guilt and the accused is entitled to an acquittal if
his guilt of the is not so proved.

ALLEGATION OF CRIME IN CIVIL PROCEEDINGS

It is not uncommon that allegations are made in civil proceedings which bother on the commission
of crime against a person. Section 135 (1) deals with the applicable standard of proof thus: “If the
commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or
criminal, it must be proved beyond reasonable doubt.”

The above provision consequently insists that a party alleging that his adversary has committed a
crime such as forgery has the burden of proving the same not merely on the balance of probabilities
but beyond reasonable doubt.

AHANEKU V. IHEATURU. (1995) 2 NWLR pt 380 p. 258. The R as P had sued the A for
declaration of title to land in dispute belonging to him being part of his father’s share of their
family ownership which he assumed upon his father’s death. He stated that the land was wrongly
pledged to the A by his nephew. The land was pledged for N40. That after the meeting with Eze
J.A. Onyekwere, the sum of N40 was deposited for the redemption of the land. The A stated that
the land was pledged to him by Nwaze and later sold to him by the same Nwaze. He thereafter
proceeded to perfect his title by applying for the C of O. the A alleged that the doc purportedly
made by his late Eze J.A. Onyekwere & Cabinet Members who arbitrated on this matter was

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forged. Held: since the A raised the issue of allegation of forgery, he was duty bound to prove the
allegation beyond reasonable doubt, A’s claim was dismissed C of O granted to him was set aside.

Buhari v. Obasanjo (2005) 13 NWLR pt 941 p.1 at 209.

Farmuroti v. Ogbeke (1991) 5 NWLR pt 189 p.1
There was a Land absolute between the plaintiff/respondent and the Defendant/Appellant. Both
parties traced their title to the same family. The Appellant having lost at the High Court and Court
of Appeal, contended at the supreme Court that judgement ought not to have been entered in favour
of the Respondent because the conveyance upon which the ruling was made was not duly executed
as it was forged. Held that the onus was on the Appellant to prove forgery because he who alleges
the commission of a crime was duty bound to prove it beyond reasonable doubt.

H.M.S. (T) v. First Bank (1994) 1 NWLR pt 162 p.290 is the authority for the view that where a
commission of crime is directly in issue the party alleging must prove it beyond reasonable doubt.

However, where a party pleads both allegation of crimes and non-criminal allegations. Failure to
prove the criminal allegation beyond reasonable doubt will not be fatal to such a party’s case if the
non-criminal allegation is proved on the balance of probability.

In AJASIN V OMOBORIOWO, the petitioner had alleged falsification of election results by the
D, his agents and privies. He also alleged that he scored highest number of votes cast at the
election. He failed to prove the allegation of falsification of election result beyond reasonable
doubt. He however, proved the allegation that he scored the highest votes on the balance of
probabilities. The court applied the doctrine of severance to separate criminal allegations from
non-criminal allegations. The court found that the criminal allegation of falsification of election
result was not proved beyond reasonable doubt. The non-criminal allegation of being the candidate
with the highest number of votes was however proved on the balance of probabilities. It was the
backdrop of proof of non-criminal allegations on the balance of probabilities that judgment was
entered in favour of the petitioner despite his failure to prove the criminal allegation beyond
reasonable doubt.

Note also that in order to apply section 135 (1) in civil cases, the allegation of crime must be
directly in issue in the sense of being the foundation of the plaintiff’s claim. Therefore, where the
allegation is collateral or tangential to the claim, section 135(1) will not apply.

In NWANKERE v ADEWUNMI. The plaintiff had alleged that the D refused to act in a particular
way in order to put pressure on the P to act in a particular way. It was held that this merely showed
the motive of the D but since there was evidence supporting the P’s claim without proof of motive,
the allegation of bribery was not directly in issue as to justify the requirement of proof beyond
reasonable doubt.

AROWOLO v IFABIYI is the authority for the view that the mere fact that the P used the word
fraudulently in his pleading does not necessarily make fraud the main foundation of his claim as
to justify application of section 135 (1). Per Iguh JSC “where a strong language is employed to

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describe one’s conduct or motive in transaction as was done in the present case by the use of the
words fraudulently, that doesn’t mean ipso facto to convert the basis of claim to a crime.”
Nwobodo v. Onoh (1984) ISC p. 1
Fayemi v. Oni (2009) All FWLR pt 493 p.1254

LEGAL BURDEN IN CRIMINAL CASES

With regard to criminal cases, the law is settled that the burden of proving the guilt of the accused
lies on the prosecution.
See
1. S135(2) Evidence Act 2011
S 135: Standard of proof where commission of crime in issue; and burden where guilt of
crime, etc. asserted.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to
section 139 of this Act, on the person who asserts it, whether the commission of such act is or is
not directly in issue in the action.

2. S139(2) Evidence Act 2011

S 139: Burden of proof in criminal cases
(1) Where a person is accused of any offence, the burden of proving the existence of circumstances
bringing the case within any exception or exemption from, or qualification to, the operation of the
law creating the offence with which he is charged is upon such person.
(2) The burden of proof placed by this Part upon a defendant charged with a criminal offence shall
be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether
on cross-examination or otherwise, that such circumstances in fact exist.

(3) Nothing in sections 135 and 140 or in subsection (1) or (2) of this section shall –
(a) prejudice or diminish in any respect the obligation to establish by evidence according
to law any acts, omissions or intentions which are legally necessary to constitute the
offence with which the person accused is charged; or
(b) impose on the prosecution the burden of proving that the circumstances or facts
described in subsection (2) of this section do not exist; or
(c) affect the burden placed on a defendant to prove a defence of intoxication or insanity.

3. Section 36(5) CFRN 1999

Presumption of innocence in trials:
(5) Every person who is charged with a criminal offence shall be presumed to
be innocent until he is proved guilty:
Provided that nothing in this section shall invalidate any law by reason only
that the law imposes upon any such person the burden of proving particular
facts.

4. section 36(11) CFRN 1999

Protection from self-incrimination:

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(11) No person who is tried for a criminal offence shall be compelled to give
evidence at the trial.

The above provisions confirm that an accused person enjoys a presumption of innocence under
our criminal justice system. Therefore, it is the duty of the prosecution to prove the guilt of the
accused and not for the accused to prove his innocence or disprove the commission of the alleged
offence.

Areh v COP “It is a principle of law that the burden of proof lies upon the party who substantially
asserts the affirmative of the issue and generally in criminal cases, (unless otherwise directed by
statute) the presumption of innocence casts the burden of proving every ingredient of the offence
on the prosecution.”

The rule imposing the burden of proving the guilt of the accuse on the prosecution is traceable to
the decision in Woolmington v DPP. The case against the A was that he murdered his wife to
whom he recently been married to. His wife had left him and returned to her mother. He went to
see her with a gun concealed under his coat. When he met her, she died of gunshots from the A’s
gun. There was no eye witness account of the incident. He raised the defence of accident
contending that he took the gun to threaten his wife that he would kill himself if she failed to return
with him to the house. Whilst trying to show her the gun, the gun accidently exploded and killed
her. The TC per Swift J, directed the jury that once it was established that the deceased died of
gunshot from the A’s gun, the burden was on the A to establish the defence of accident. Based on
the direction, the A was convicted. On appeal, it was held that the trial judge didn’t properly
direct the jury on the question of burden of proof. Held: “While the prosecution must prove the
guilt of the prisoner, there is no burden on the prisoner to prove his innocence and it is sufficient
for him to raise doubt as to his guilt. Throughout the web of English criminal law, one golden rule
is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt…the principle
that the prosecution must prove the guilt of the prisoner is part of common law of England and no
attempt to whittle it down can be entertained.”

SC followed this decision in Nwagu v The State holding that the burden of proving the guilt of
the accused remains on the prosecution even where the defence of self-defence, accident or
provocation is set up. It is not for the accused to prove the defences but for the prosecution to
eliminate the possibility of the application of any defence.

In Odibo v The State, the issue at stake was whether the A’s gun killed the deceased. Evidence
revealed that the deceased could have died of other causes. There was no evidence whether the
deceased had died before the A even got to and fired the gun at the crime scene. Nevertheless, the
trial judge held that the evidence against him raised presumption of guilt unless contradicted by
the A. On appeal, it was held that there was a misdirection per Ejiwunmi JCA “As our law
requires that the burden lies on the prosecution to establish its case with certainty, and not for the
accused to establish his innocence, the legal position has not changed…”

Onuoha v The State, Katsina-Alu JCA “in criminal trials, the onus is on the prosecution to prove
beyond reasonable doubt the guilt of the accused. Failure by the prosecution to do so will lead to

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the discharge of the accused person. That burden on the prosecution doesn’t shift to the accused.
In other words, the accused is under no obligation to prove innocence.”

Same was held in Martins v The State per Coomassie JCA.

See Ogunbanjo v The State (2002) 15 NWLR pt. 789 p.76

EVIDENTIAL BURDEN IN CRIMINAL CASES (EXCEPTIONS TO THE RULE)

There are instances when the burden of proving some issues is foisted on the accused. See for
example section 135(3) Evidence Act 2011. S135(3) If prosecution proves the commission of
crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted unto the
defendant.

For example:
1. The burden is on the accused to prove any defence(s) he wishes to raise at his trial. E.g.
insanity section 27 Criminal Code, intoxication etc as he is naturally presumed to be of
sound mind also S139(3)(c) EA on intoxication and insanity. Inyang v The State, Idowu
v The State, Upetire v AG Western Nigeria, Ansa v. The State (1988) 3 NWLR pt. 83
p. 386 at 400 or defences of provocation accident or self-defence. See also Okom Edoho
v. State (2020).

2. It is common for statutes to impose burden of proving particular fact on the accused. See
Section 417 of the Criminal Code, Sections 145, 146 and 168 of the Custom and Excise
Management Act. See Chairman of Board of Customs & Excise v. Baye (1960) WNLR
178, EBIRI v. Board of Customs and Excise (1965) NMLR 35, see also Section 6(3) of
the Recovery of Public Authorities (Special Military Tribunal) Decree No. 2 of 1984,
see Section 7 of the Road Traffic Act. Simi Johnson v. COP (1960) WRNLR 118.

In Chairman of Board of Customs & Excise v. Baye, the accused had been charged with
knowingly and with intention to defraud the government of the duty payable therein,
acquired possession of certain dutiable goods which had not been paid for, contrary to
section 145(a) of CEMA. She alleged that she didn’t know whether the duties had been
paid on the goods or not by the person from whom she had bought. She also stated that she
did not know that the goods were dutiable. Held: once it was shown that dutiable goods
were found in her possession, a prima facie case was made out against her, that she
knowingly with intent to defraud the government of the duties possessed the goods. The
burden was therefore on her to explain to the court that duty had been paid on the goods or
that having acquired them in the ordinary course of business, she did not know that duty
had not been paid.

In Ebiri v Board of Customs & Excise it was held that the combined effect of some of
the provisions of CEMA is that where a customs officer finds a person in any part of
Nigeria in possession of dutiable imported goods and such person is charged under section

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145 of CEMA, the onus of proving either that the duties have been paid or absence of
intent to defraud customs of duties payable is on that person.

Other examples of where statute-imposed burden of proof on the accused are section 60 of
the Pharmacy Act applied by the court in Queen v Ohaka

Under section 6(3) of the Recovery of Public Property (Special Military Tribunals)
Decree No.2 1984 where the prosecution has established a prima facie case against the
accused person “The onus of proving that there was no unjust enrichment contrary to any
of the provisions of section 1 of the Decree shall lie upon the public officer or any person
concerned”

In Simi Johnson v COP. Accused was charged with driving without a valid driver’s
licence contrary to section 7(1) of the Road Traffic Ordinance. She had a learner’s
permit, she also claimed to have passed the driving test but was yet to obtain the driver’s
licence at the time she was caught driving. The proviso to section 7(1) exempted the
holders of drivers permit where such driver was driving accompanied by a licenced driver,
driving within the period on a highway specified by the permit. The appellant failed to
establish that the requirements listed under the proviso were met. Accordingly, she failed
to discharge the onus imposed on her to prove exemption.

3. Where a fact is within the exclusive knowledge of the accused. Such accused has the
burden of proving it. See Section 140 of the Evidence Act 2011. When any fact is
especially within the knowledge of any person, the burden of proving that fact is upon him.

Otti v. IGP (1966) NNLR 56 he was charged with the offence of carrying out money
lending business without a money lender’s licence. Prosecution showed that he carried out
the business. However, no evidence adduced that he had no licence. He also did not adduce
evidence that he had a licence. It was held that burden was on him to show that he had
licence because it was a fact within his exclusive knowledge.

Rahman v. COP (1973) NNLR 87 was a case where the A charged with cheating (similar
to section 419CC). He approached Hamdala Hotel posing as a pilot of an Air Line (Pan
Air). On the basis of the arrangement between the Hotel (Hamdala) and the Airline to house
and feed their pilots & cabin crew, he was accommodated & fed by the hotel. During the
trial, evidence was not adduced by the prosecution to show that he was not a pilot employed
by Pan Air. It was held that burden of proving that he offered no evidence that he was
employed by Pan Air was on him because it was a fact within his exclusive knowledge.

See also Akhidime v. State (1984) NSCC 588, Odu v. State (2000) 7 NWLR pt. 588
p.283

Note(exception): that where a particular fact is within the knowledge of the accused and
the prosecution, the burden of proving such fact is on the prosecution. In Joseph v IGP.
The accused was charged for unlawful procession contrary to section 38(a) of Police
Ordinance. There was no evidence on whether the accused obtained a licence or not to

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embark on the procession. The duty to issue the licence was that of the prosecution i.e. the
police which was consequently in a position to know if a licence was issued or not. The
accused also was in a position to know if he had a licence or not. Yet no evidence was
forthcoming from either side on whether there was a licence or not. Held: that the fact was
not within the exclusive knowledge of the accused but mutual knowledge of both the
prosecution and the defence. Not duty on the accused to prove the fact.

Standard of Proof in Criminal Cases

The standard is proof beyond reasonable doubt. See Section 135 Evidence Act. As
to the meaning of “beyond reasonable doubt”.

See Lord Denning dictum in Milner v. Minister of Pensions (1947) 2 All ER 372, Ukwumenye
v. State (1989) 4 NWLR pt. 114 p.131 at 156 per Oputa JSC. See also the following cases.
Bakare v. State (1987)1 NWLR pt. 52 p.579 at 581, Ibrahim v. State (1995) 3 NWLR pt. 381
p.47, Aremu v. State (1991) 7 SCNJ pt. 11 p.296

Note the distinction between “proof beyond reasonable doubt” and “proof beyond shadow of
doubt”. See Akpabio v. State (1994) NWLR 358 at 600.

Note: that where the accused has any burden to discharge in a criminal case, the standard to be
applied is civil standard i.e. balance of probabilities or preponderance of evidence. See Section
137(1) of the Evidence Act 2011.

See Guobadia v State (2004) 6 NWLR pt 869 p. 360.

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