PUL 401: Insurance Law S.A.R.I. 2019. (Johnson E.

Omotayo)

LAW OF EVIDENCE
PUL 401: LAW OF EVIDENCE (LASULAWS)
-SANTA’S NOTE-
COURSE OUTLINE
1. GENERAL INTRODUCTION;
i. Definition
2. SOURCES OF LAW OF EVIDENCE
3. CLASSIFICATION OF EVIDENCE
i. Facts and Facts Issue
ii. Facts Relevant to Facts Issue
iii. Relevancy and Admisibility of Evidence
iv. Res Crestae
v. Similar Facts Evidence
vi. Character Evidence
vii. Hearsay Evidence
viii. Admission and Confessions
ix. Competence and Compatibility of Witnesses
x. Corroboration

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PUL 401: Insurance Law S.A.R.I. 2019. (Johnson E. Omotayo)

ACKNOWLEDGEMENT
My sincere gratitude to God the Almighty, the author and giver of my wisdom, knowledge and
understanding. And to my parents Mr. and Mrs. Johnson; even an epistle about them cannot
suffice.

Special thanks to my indefatigable lecturer, Dr. Arowolo from whose immense fountain of
knowledge of the Evidence Law I have been able to sip.

And to every other persons who have in any dimension contributed to the making of this note.

To every readers of this note, I wish you all success. Happy reading.

Thank you all.

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PUL 401: Insurance Law S.A.R.I. 2019. (Johnson E. Omotayo)

INTRODUCTION TO LAW OF EVIDENCE

Without evidence, decision cannot be taken by the court. The court depends on evidence adduced by the
parties to substantiate the case that is tabled before the court. Hence, evidence is the pillar in which the court
rests to take decisions. Without evidence, a case cannot survive in the court. See the case of; ONIBUDO v.
AKIBU [1982]

The Law of Evidence plays a prominent role in the administration of criminal justice in that, it determines which
facts are legally admissible and the legal means of attempting to establish those facts. Generally, when a
litigant goes to court to ventilate his grievance, the court by the rules of substantive and procedural laws, has
to conduct an enamiry into the facts of the case; draw inferences and in addition, listen to the legal arguments
of the parties or their counsels. In doing this, a thorough understanding of the law of evidence becomes not
only relevant but, absolutely important. Thus, for clarity, evidence is defined in relation to judicial proceedings.

Definition of Evidence
The Latin word for evidence is ‘fiji’.

According to the Black Law Dictionary, evidence is something according to oral testimony, it also include
documents and tangible objects e.g., television.

The Indian Evidence Act of 1872 is similar to the Nigerian Evidence Act of 2011, and it defined evidence as all
documents including electronic record produced for inspection of the court.

The term ‘Evidence’ is not defined in Nigeria by any statute. However, it is necessary to point out at this stage
that the word may be used in two senses: in the literal sense and in the technical sense. In the ordinary and
literal sense the term means; anything that gives reason for believing something. In literal sense, evidence
connotes no more than a verifying or a supporting variable. A thing that lends credence to the existence of a
fact.

In the technical sense, the word ‘Evidence’ according to Babatunde means; that which demonstrate, makes
clear, or ascertain the truth of the very fact or point in issue.

Phipson defined ‘Evidence’ as a means “The testimony, whether oral, documentary or real, which may be
legally received in other to prove or disprove some facts in dispute”.

According to AGUDA, he stated that, “Judicial evidence is the means by which facts are proved, but excluding
inferences and arguments”

*The Supreme Court in the case of AKINTOLA & ANOR v. SALAKO defined evidence as the means by which

It is common knowledge that, a fact can be proved by the oral testimony of a person who perceived the fact, or
by the production of documents, or by the inspection of things or places.

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PUL 401: Insurance Law S.A.R.I. 2019. (Johnson E. Omotayo)

According to section 1 of the Evidence Act, Laws of the Federation of Nigeria 1990, a fact is defined to include;

a. Anything state of things or relation of things capable of being perceived by the senses.
b. Any mental condition of which any person is conscious

Section 2(2) provides in relation to proof of fact that, a fact is said to be;

a. “PROVED” when after considering the matters before it, the court either believes it to exist or considers its
existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the
supposition that it does exist.
b. “DISPROVED” when after considering the matter before it, the court either believes that it does not exist or
considers its non-existence so probable that a prudent man ought, in the circumstances of the particular case,
to act upon the supposition that it does not exist.
c. “NOT PROVED” when it is neither proved nor disproved. Opinions, inferences and arguments does not fall
under the law of evidence.

In a case, it must be decided whether an evidence is admissible or inadmissible.

SOURCES OF THE LAW OF EVIDENCE

Evidence Law was derived from the English Law. The following are the sources of Nigerian Law of Evidence;

1. The Received English Law

2. The Evidence Act of Nigeria
3. The Constitution of the Federal Republic of Nigeria 1999 as altered
4. Case Laws

We shall delve a brief history of these two (2) sources

1. The Received English Law

Before the first Evidence Act of 1945, the Law of Evidence which applied in Nigeria was the English Common
Law of Evidence. The Law was been applied in the Magistrates’ Courts and the High Court, then known as the
Supreme Court.

2. The Evidence Act of Nigeria (2011)

The main source of the law of evidence in Nigeria is the Evidence Act. The Act was first passed in 1943 as
Evidence Ordinance (Ordinance No. 27 of 1943), but came into operation in 1945. Currently, the Evidence Act
in operation in Nigeria is the Evidence Act of 2011, which was made to repeal the Evidence Act of 2004.

All *referrals must be made to the 2011 Act except when a comparison is required. Section 84 of the
Evidence Act, 2011 deals with the differences between the 2011 and 2004 Act.

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PUL 401: Insurance Law S.A.R.I. 2019. (Johnson E. Omotayo)

Also, section 37 and 38 of the Evidence Act 2011 which provides on ‘Hearsay’ originated from the English Law
of Evidence.

Section 1, 2, 3 of the Act regulates the manner by which evidence can be entered into or given.

Although the Evidence act is the major source of the Law of Evidence in Nigeria, the English Common Law of
Evidence or any other relevant local statute may be resorted to for the purpose of supplementing the
provisions of the Act where necessary. This is so by virtue of section 3 of the Evidence Act 2011.

SA: Section 3 Evidence Act, 2011.

It provides that; “Nothing in this Act shall prejudice the admissibility by any evidence that is made admissible
by any other legislation validly in force in Nigeria”.

A judicial authority for this is the case of;

R v. AGARAGARIGA ITULE [1961] 1 ALL NLR 462

In considering whether part of a confession which tells in favour of an accused person was evidence of fact as
alleged, Bret Ag, C.J.F. stated that;
“…the matter is not dealt with expressly in section 27 to 32 of the Evidence ordinance and the Common Law
rule therefore applies by virtue of section 5(a)”.

APPLICABILITY OF THE EVIDENCE ACT

Upon the determination of the sources of Law of Evidence in Nigeria, it is important to determine the courts
wherein the provisions of the Act may be invoke. This has been provided for in section 256(1-3) of the Evidence
Act, 2011.

SA: Section 256(1-3) Evidence Act, 2011.

Subsection 1(a-d): It provides that; “This Act shall apply to all judicial proceeding in or before any court
established in the Federal Republic of Nigeria but it shall not apply to -

a. Proceedings before an arbitrator

b. A field general court martial; or
d. Judicial proceedings in any civil cause in or before any Sharia Court of Appeal, or Customary Court of Appeal,
Area Court or Customary Court, unless any authority empowered to do so under the constitution, by order
published in the Gazette , confers upon any or all Sharia Courts of Appeal, Customary Courts of Appeal, Area
Courts or Customary Courts in the Federal Capital Territory Abuja or a State a the case may be power to
enforce any or all of the provisions of the Act”.

Implication
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PUL 401: Insurance Law S.A.R.I. 2019. (Johnson E. Omotayo)

What this simply means is that, the Evidence Act of 2011 is applicable to all the courts created in Nigeria by
virtue of section 5 of the Nigerian Constitution. However, the Evidence Act cannot be applied or invoked in any
judicial proceeding taking place in a;

 Court of Arbitration’
 Field general martial; or
 In any civil proceeding in or before any Sharia Court of Appeal, or Customary Court of Appeal, Area Court or
Customary Court, except the constitution has empowered any authority to do so; which must be through an
order published in the Gazette and conferring upon any or all Sharia Courts of Appeal, Customary Courts of
Appeal, Area Courts or Customary Courts in the Federal Capital Territory Abuja or a State a the case may be
power to enforce any or all of the provisions of the Act. Hence, any of the courts stated above may apply the
provisions of the Evidence Act provided an authority (empowered by the constitution) confers such power on
them through the mechanism of a Gazette. However, if the issue of fair hearing arises during a Court of
Arbitration proceeding, it can be taken to the High Court of that State, see the case of; FALODUN v. OGUNSHE.
This applies also to cases of fair hearing resulting from proceedings of a Court Martial. It should be noted that,
this particular paragraph applies to civil proceeding in or before any of the courts stated above, and not
criminal proceeding.

Subsection 2: it provides that; “In judicial proceeding in any criminal cause or matter, in or before an Area
Court, the court shall be guided by the provisions of this Act and in accordance with the provisions of the
Criminal Procedure Code Law”.

Implication
What this simply means is that, where an Area Court is faced with a criminal matter, the court is to be guided
by both the Evidence Act and the Criminal Procedure Code Law. Hence, the court is to carry out the proceeding
in accordance with the Evidence Act and the Criminal Procedure Code Law.

Subsection 3: it provides that; “Notwithstanding anything in this section, an Area Court shall, in judicial
proceeding in any criminal cause or matter, be bound by the provisions of sections 134 to 140”.

Implication
This simply means that, irrespective of the provisions of this section 256, when an Area court is faced with a
criminal matter or cause, shall always be bound by the provisions of section 134 to 140 of the Act.

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PUL 401: Insurance Law S.A.R.I. 2019. (Johnson E. Omotayo)

PART I OF THE ACT (Section 1-3)

SA: Section 1(a-b) Evidence Act, 2011.

Subsection 1(a): it provides that; “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: 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, and of no other”.

Implication
What this simply means is that, evidence can be given in any proceeding for the purpose of establish the
existence or non-existence of every fact in the issue, however, the court is free to remove/exclude evidence of
fact that is given if it appears to be too remote to be material, even though it may be relevant or deemed to be
relevant to the issue at hand.

The question here now is, when or how can an evidence of fact be relevant to an issue and still be remote to it
at the same time; this is the duty of the court to determine.

Subsection 1(b): it provides that; “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: 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”.

Implication
What this simply means is that, evidence can be given in any proceeding for the purpose of establish the
existence or non-existence of every fact in the issue, however, this section restricts or does not allow any
person to give of fact which he is restricted/disentitled to give for the time being by virtue of the provision of
any other law

SA: Section 2 Evidence Act, 2011.

It provides that; “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”.

Implication

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PUL 401: Insurance Law S.A.R.I. 2019. (Johnson E. Omotayo)

This simply means that, every evidence given in accordance with section 1 of this Act shall be admissible in any
judicial proceeding (civil or criminal), provided such evidence has fulfilled all the conditions specified by or
under this Act in such a case; except if there is any law or Act in Nigeria that excludes such evidence to be
given.

SA: Section 3 Evidence Act, 2011.

It provides that; “Nothing in this Act shall prejudice the admissibility by any evidence that is made admissible
by any other legislation validly in force in Nigeria”.

Implication
This simply means that, no provision of this Act shall restrict the admissibility of any evidence that has been
made admissible by any law or legislation that is in force in Nigeria. See the case of; R v. AGARAGARIGA ITULE
[supra].

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PUL 401: Insurance Law S.A.R.I. 2019. (Johnson E. Omotayo)

FACTS RELEVANT TO FACTS IN ISSUE

‘Facts Relevant to Facts in Issue’ are facts which are not, or do not form part of the subject matter of the issue
that is being contended in the court, but have a strong connection with the facts in the issue contended so as
to make the facts in the issue probable or improbable. Facts are relevant to the facts in issue if they are so
connected to it, such that, for a claimant to have any success in making the facts in issue probable, he must
establish/show them or on the other hand, for a defendant to have any success in making the facts in the issue
improbable, he must establish/show them.

Hence, facts relevant to facts in issue can be seen as ‘helping facts’ which a party to a case will have to
establish/show in order to make the actual facts in the issue probable or improbable as the case may be;
although, these facts were not part of the actual facts in the issue contended, there is no way the actual facts in
the issue contended can be proved or disproved (as the case may be) without raising up/establishing/showing
these relevant facts. There relevance to the actual facts in the issue contended is that, they assist in
determining the probability or improbability of the facts in issue as the case may be. In summary, facts relevant
to facts in issue, helps to facilitate the proving or disproving of facts in issue in, irrespective of whether they
occurred at the same time and place as the facts in the issue or not.

The law is that, one fact is said to be relevant to another, when one is connected with the other in any way as
to make the fact in issue probable or improbable. Section 4,5,6,7,8,9,10,11,12,13 and 19 of the Evidence Act
2011, describes what relevant facts are, and facts relevant to issue. We shall examine these relevant sections in
seriatim.

Relevance of Facts forming Part of same Transaction:

SA: Section 4 Evidence Act, 2011.

It provides that; “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
place”.

Implication
This section simply defines what a relevant fact is, which is; facts which are not in issue contended, but are so
connected with the facts in issue contended so as to form part of it (the issue). It then goes further to establish
that time and place does not affect the relevance of facts to the facts in issue contended. Hence, it is
immaterial whether they occurred at the same time or not, provided they are so connected to facts in issue
contended as to form part of it, they are deemed relevant.

The summary of this section is that, facts may not be in issue contended in court, but if such facts are so related
to the facts in issue contended then, they are relevant. This is the reasoning in the case of;

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PUL 401: Insurance Law S.A.R.I. 2019. (Johnson E. Omotayo)

AKINGBADE v. ELEMOSHO [1964] ALL NLR 146 at 149 – 150.

In this case, the issue in contention was the ownership of land owned by the appellant which was challenged
by the defendant. At the lower court, the appellant gave evidence that, the other lands neighbouring his land
had the same conveyance as the land in dispute, which the court dismissed on the basis of not forming part
of the issue in contention.
On appeal, the Supreme Court stated that; the trial judge in the claim of ownership of land was wrong to
reject the evidence of other conveyances as to how the lands consanguineous with the land in dispute was
divided, even though it was not in the issue for contention, they were geared toward proving the facts in
issue contended.

Facts which are the Occasion, cause or Effect or Facts in Issue:

SA: Section 5 Evidence Act, 2011.

It provides that; “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”.

Implication
This simply means that, facts whether immediate or otherwise, by which relevant facts or facts in issue
contended arise or occur or form the basis of their occurrence are deemed to be relevant to the facts in issue
contended.

This implies that facts may appear extreme and so unconnected to the facts in issue, yet will still be relevant; so
far, by it relevant facts or facts in issue contended arose or occurred or form basis for their occurrence.
Although, this rule does not permit or allow the admissibility of hearsay. As reasoned in the case of;

R v. STEWART
The court stated that, marks produced on the ground by a struggle (from two person fighting) is enough to
pin down the accused as the murderer of the deceased even though the murder did not occur at the location
but at some other place. Although, it does not permit the admissibility of hearsay.

Motive, Preparation and Previous or Subsequent Conduct

SA: Section 6(1-4) Evidence Act, 2011.

Subsection (1): it provides that: “Any fact is relevant which shows or constitutes a motive or preparation for
any fact in issue or relevant”.

Implication
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PUL 401: Insurance Law S.A.R.I. 2019. (Johnson E. Omotayo)

This subsection is basically talking about motive; as a relevant fact to fact in issue contended. Motive is simply
the reason for which an act or omission is done. See the case of: OGUNTOLU v. STATE

What this implies is that, motive is a relevant fact to the facts in issue contended. Hence, any fact will be
relevant if it shows or constitutes the motive for which an act or omission (i.e.,fact in issue) was done. As
applied in the case of;

R v. SENIOR [1899] 1QB 283.

It was held that, a man who having the means to provide medical aid for a sick child but refused to do so;
though for religious belief had the motive to cause death.

Subsection (2): it provides that: “the conduct, whether previous or subsequent to any proceeding –

Paragrapgh (a): of 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

Paragraph (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 act in issue or relevant fact”.

Implication
The two paragraphs simply means that, the conduct of a person whether previous or subsequent to any
proceeding is relevant to the facts in issue provided such conduct influences or is influenced by any act in issue
or relevant fact ………………..

Subsection (3): it provides that: “The word “conduct” in this Section does not include statements, unless
those statements accompany and explain acts other than statements, but this provision shall affect the
relevance of statements under any other Section.”

Implication
This means that, for a conduct to be relevant, it does not include statements, except such statement
accompany and explained acts other than statement alone.

Subsection (4): it provides that: “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”.

Implication
This means that, where the conduct of a person will be relevant to the facts in issue, any statement that is
made by another person to such person or in his presence and hearing that affects (caused) his conduct will
also be relevant.

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PUL 401: Insurance Law S.A.R.I. 2019. (Johnson E. Omotayo)

Facts Necessary to Explain or to Introduce Relevant Facts:

SA: Section 7(a-e) Evidence Act, 2011.

Paragraph (a): it provides that: “Facts necessary to explain or introduce a fact in issue or relevant fact; are
relevant in so far as they are necessary for that purpose”.

Implication
This paragraph simply means that, any fact will be deemed relevant to the facts in issue or relevant fact if such
fact helps to explain the facts in issue or relevant fact; or if such fact helps to introduce the facts in issue
contended or relevant fact. In other words, a fact is relevant if it renders probable or improbable any facts in
issue or relevant fact by explaining or introducing a facts in issue or relevant. As reasoned in the case of:

OBASANJO v. SEAVIEW INVESTMENT LIMITED [1993] 9 NWLR Pt.317 Pg. 327 at 328.
The court stated that, a fact which introduces a fact in issue is relevant notwithstanding the fact that such
fact may be scandalous.

Paragraph (b): it provides that: “Facts which support or rebut an inference suggested by a fact in issue or
relevant fact; are relevant in so far as they are necessary for that purpose”.

Implication
This paragraph simply means that, any fact will be deemed relevant to the facts in issue or relevant fact if such
fact helps to support an inference suggested by a fact in issue or relevant fact; or if such fact helps to rebut an
inference suggested by a fact in issue or relevant fact. In other words, a fact is relevant if it renders probable or
improbable any facts in issue or relevant fact by supporting or rebutting an inference suggested by a fact in
issue or relevant fact.

Paragraph (c): it provides: “Facts which establish the identity of anything or person whose identity is
relevant; are relevant in so far as they are necessary for that purpose”.

Implication
This paragraph simply means that, any fact will be deemed relevant to the facts in issue or relevant fact if such
fact helps to establish the identity of anything or person whose identity is relevant to the fact in issue. Hence,
any fact is relevant if it establishes the identity of a person or thing whose identity is relevant in making the fact
in issue probable or improbable. In other words, any fact that brings the identity of a person or a thing that
initially is not in the fact in issue but relevant to the fact in issue is a relevant fact.

Paragraph (d): it provides that: “Facts which fix the time or place at which any fact in issue or relevant fact
happened; are relevant in so far as they are necessary for that purpose”. Or

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PUL 401: Insurance Law S.A.R.I. 2019. (Johnson E. Omotayo)

Implication
This paragraph simply means that, any fact will be deemed relevant to the facts in issue or relevant fact if it
helps to fix the time at which any fact in issue or relevant fact happened; or if such fact helps fix the place at
which any fact in issue or relevant fact happened. Hence, though a fact is not in issue contended, it will still be
relevant if it makes probable or improbable the fact in issue by fixing the time or place at which any fact in
issue or relevant fact happened.

Paragraph (e): it provides that: “Facts which show the relation of parties by whom any such was
transacted; are relevant in so far as they are necessary for that purpose.”

Implication
This paragraph simply means that, any facts will be deemed relevant to the facts in issue or relevant fact if it
helps to show the relation of parties by whom any such act or omission was transacted (committed). Hence,
though a fact is not in issue contended, it will still be relevant if it shows the
relation/interaction/communication between parties by whom the fact in issue (i.e., act or omission) was
transacted/done. In other words, certain persons may not be included in a suit, however, for the purpose of
making the facts in issue probable or improbable, any fact that tends or helps to show that there was some
kind of relationship between some other persons and the accused person in relation to the offence alleged will
be deemed as a relevant fact.

Things said or done by Conspirator in reference to Common Intention

SA: Section 8(1-3) Evidence Act, 2011.

Subsection (1): it provides that: “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
anyone 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 against each of the persons believed to be
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”.

Implication
This subsection simply means that, in proving the offence of conspiracy or that a person is a party to a
conspiracy, any statement made either in writing or words by any one of the so conspirators for the execution
or furtherance of their common intention is a relevant fact against all the conspirators. Hence, any statement
made by a conspirator is admissible against the other conspirators to prove a common intention.

Subsection (2): it provides that: “Notwithstanding subsection (1) of this section, statements made by
individual conspirators as to measures taken in the execution or furtherance of such common intention are
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not deemed to be relevant as such against any conspirator, except those by whom or in whose presence such
statements are made”.

Implication
Subsection (2) is still establishing subsection (1), however, it goes further to say that, for the provision in
subsection (1) to apply, such statement by any one of the conspirators must have been made in the presence
of the other conspirators or with their consent. Hence, subsection (2) serves as an exception to subsection (1)
that; in proving the offence of conspiracy, or that a person is a party to a conspiracy, any statement made
either in writing or words by any one of the so conspirators for the execution or furtherance of their common
intention will not be a relevant fact against all the conspirators unless such statement is made in the presence
of the other conspirators or with their consent.

In summary, it means that, any statement made by a conspirator is admissible against the other conspirators to
prove a common intention if the statement was made in the presence of the other conspirators or with their
consent.

Subsection (3): it provides that: “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”.

Implication
This simply means that, facts that are made relevant under this section (8) cannot be relevant in proving the
existence of a conspiracy or to prove that a person is a party to a conspiracy, except the court is satisfied that
other than them, there are ‘prima facie’ other facts/grounds which show the existence of the conspiracy.
Hence, the proving of a conspiracy cannot be solely established on the fact of statements made by any one of
the conspirators alone, it must be supported by other facts that establish the existence of the execution or
furtherance of the common intention of the conspirators. As reasoned in the case of;

R v. BLAKE AND TYRE [1844] 6 QB 126.

The accused persons were conspiring to defraud the Custom Authority. One of the conspirators had made
entries in two books, one of which was necessary part of the fraud, whilst the other was entirely for his use
and convenience.
On a charge of fraud, it was held that the former entry was admissible against both conspirators as it tended
towards the furtherance of their common intention.

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When Facts not otherwise Relevant becomes Relevant

SA: Section 9(a-b) Evidence Act, 2011.

Paragraph (a): it provides that: “Facts not otherwise relevant are relevant if – they are inconsistent with
any fact in issue or relevant fact”; and

Implication
What this paragraph means is that, facts which are not relevant to the facts in issue are still deemed to be
relevant if they are inconsistent with any fact in issue or relevant fact. Hence, facts that are not relevant to the
facts in issue or relevant facts can be deemed admissible if they are inconsistent or contradict the facts in issue
or relevant facts so as to render the facts in issue or relevant facts improbable. For example, if the issue is
whether it is the accused who burgled a house in a particular village on a particular date, the fact that
throughout that day he was away from the village in another town, is relevant and may be proved by evidence.
The absence of the accused in the village on the day of the incident renders it improbable that he was the
culprit and such fact is subsequently relevant. Even though such fact is inconsistent with the fact in issue (the
guilt of the accused) it is still relevant by virtue of paragraph (a).

Paragraph (b): it provides that: “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”.

Implication
This paragraph implies that, facts that are irrelevant to the facts in issue will still be admissible (as a relevant
fact) if on their own or together with other facts they make the existence or non-existence of any facts in issue
or relevant course probable or improbable. Hence certain facts can be admissible as relevant if alone or in
connection with other facts they show the existence or non-existence of any facts in issue or relevant facts so
as to make the probable or improbable even though such fact is irrelevant to the fact in issue i.e., they are not
part of the facts in the issue contended.

The case of Akingbade v. Elemosho illustrates this paragraph very well.

AKINGBADE v. ELEMOSHO
Here, the plaintiff sued the defendant for declaration of title to a piece of land which was a plot of land out of
many others in a lay-out. In order to establish the identity of the land in dispute, the plaintiff tendered deeds
of conveyance with plans attached of other conveyances executed in favour of other purchasers by the same
person who sold the land to him. This was an attempt to show that his own title must be valid given that the
other allotees or purchasers had taken possession of their own plots unchallenged. Although the trial court

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rejected this evidence, on appeal, the Supreme Court held that the other conveyances were relevant by virtue
of section 12.

In this case, even though evidence that the other allotees had the same conveyance as the defendant was an
irrelevant issue to the facts in issue, the Supreme Court held that it was admissible as a relevant fact because it
helps to establish the existence or non-existence of the conveyance in question so as to make it probable or
improbable.

Certain Facts Relevant in Proceedings for damages:

SA: Section 10 Evidence Act, 2011.

It provides that: “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”.

Implication
This section simply means that, in any proceeding for damages or compensation, any fact that will enable or
assist the court in determining the amount of damages to be awarded to the claimant would be admissible as a
relevant fact to the fact in issue. For instance, in a claim for damages by Ann for destruction of her car by Ben,
giving evidence of value of the car that was damaged by Ben his admissible as a relevant fact to the facts in
issue, even though it is not in the issue.

SA: Section 11(1-2) Evidence Act, 2011.

Subsection 1(a): it provides that: “Facts showing the existence of – any state of mind as intention,
knowledge, good faith, negligence, rashness, ill-well or goodwill towards any particular person; or

Implication
The simple interpretation of this paragraph is that, any fact that reveals the existence of any state of mind of an
accused in relation to the any facts in issue (offence alleged) will be admissible as relevant evidence to make
probable or improbable the facts in issue. For instance, where it is alleged that a person intentionally
committed an offence, but the accused claims negligence; any fact which when adduced is capable of proving
such state of mind (of negligence) is admissible as relevant evidence.

Subsection 1(b): it provides that: “Facts showing the existence of – any state of body or bodily feeling are
relevant when the existence of such state of mind or body or bodily feeling is in issue or relevant.

Implication

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The simple implication of this paragraph is that, any fact that reveals the existence of any state of body or
bodily feeling in relation to any fact in issue (offence alleged) will be admissible as relevant evidence to make
probable or improbable the facts in issue if such state of mind or body or bodily feeling is actually in the issue
or is relevant. Hence, the disposition of the accused before he did the offence alleged is also admissible as
relevant fact to the issue (offence alleged).

Subsection 2: it provides that: “A fact relevant as showing the existence of relevant state of mind must
show that the state of mind exists, not generally, but in reference to the particular matter in question”.

Implication
This subsection implies that, any fact that is showing the existence of a state of mind must be proved in
reference or in relation to the facts in issue (i.e., offence alleged) and not generally. Hence, this subsection is
saying that, where evidence of state of mind of the accused is to be admissible, such state of mind must be
proved in relation to any facts in issue (the offence accused) and not just generally (e.g., that the accused has
always been reckless in his normal life, NO!, such recklessness must be proved in relation to the offence he was
alleged). For instance, where Ben intending to scare Ann swerved a knife across her face which slashes her
thereby causing grievous injury to her. such scenario depicts a state of mind of negligence or recklessness, and
evidence of such swerving will be admissible, but it must be proved in relation to the grievous harm that was
caused to Ann and not generally; that Ben has always been a reckless person.

Facts bearing on Question whether Act was Accidental or Intentional:

SA: Section 12 Evidence Act, 2011.

It provides that: “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 formed part of a series of similar occurrences, in each of which the person doing the act was
concerned, is relevant”.

Implication
What this section implies is that, where the question of state of mind of the accused in doing an act comes up,
or where the necessity to rebut the defence of the accused comes up, the fact that similar acts to the act in
question had been done by the accused in series of other occasion will be admissible as a relevant evidence so
as to prove/establish the state of mind that is been alleged and rebut the accused defence. But in such a case,
for the evidence of previous similar facts of the accused acts to be admissible, the accused must have first and
foremost raised the defence of lack of intention or accident, or any other defence. This section is applicable to
both civil or criminal proceedings.

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It is this section that renders the evidence of similar facts generally inadmissible, unless the issue of accident or
intention or any other defence is a raised by the accused. By this section, the fact that a person has done an act
or omission in the past whether in a civil or criminal proceeding similar to the present proceeding is generally
irrelevant and inadmissible in proving that he actually perpetrated or committed the present act or offence
alleged. However, where the accused raises the defence of accident or lack of intention or any other defence
during the present proceeding, evidence that such act has been done in the past by the accused will become
relevant and admissible, so as to rebut any defence that is raised by the accused and prove the fact that he did
the act or offence. This is the exception to the general rule in section 12 that evidence of similar facts cannot be
admissible.

The rule of similar fact evidences, its application and its exception in criminal proceeding had been concisely
treated by the Privy Council in the case of:

MAKIN v. A.G. OF NEW SOUTH WALES [1894] AC 57.

The Court stated that, 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 he is a person of 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 evidence adduced
tends to show the commission of other crimes does not render it inadmissible if it is 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 will otherwise
be opened to the accused.

Judicial Authorities on the Application of the general rule and its exception.

On the General Rule;

R v. THOMAS [1858] 3 F.S.C. 8.

The appellant was convicted in the High Court for forgery of a letter of application for endorsement of Import
License. At the trial, the prosecution gave evidence of series of other similar transactions involving import
licences by him. On appeal, the conviction was quashed since the evidence was not relevant to the charge
before the court but was merely prejudicial to the appellant by showing as a dishonest person.

On the Exception;

AKERELE v. THE KING [1940] 8 WACA 5.

The appellant, a medical practitioner was tried and convicted for manslaughter in that he caused the death
of a child by administering a poisoned injection to the child. The poisoing, the prosecution testified, resulted
from an overdose of the drug used in the injection. The defence on the other hand maintained that the child
was particularly susceptible to the effect of this drug and unexpectedly succumbed to dose, which would

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have been harmless to a normal child. Hence, the defence was advancing the defence of lack of intention to
kill. In order to rebut the defence, the prosecution tendered evidence of the symptoms, illness and death of
nine other children who were injected with the same drug, at the same time as the deceased by the doctor.
On appeal, the Privy Council held that the evidence was rightly received.

From the above cases and section 12, the instances/condition where the evidence of similar facts can be
admissible are;

1. Where the question of the state of mind of the accused in committing the offence aries; or
2. Where the accused raises the defence of accident or lack of intention or any other defence, so as to rebut such
defence.
3. The evidence must be of similar facts to the facts in issue

For example, if Ben stabbed Ann to death. And the question of the state of mind of Ben comes into question or if
Ben raises the defence of accident, the prosecution can adduce evidence of similar past killings of other persons by
Ben so as to establish the fact that he killed Ann intentionally.

Existence of Course of Business when Relevant:

SA: Section 13 Evidence Act, 2011.

It provides that: “When there is a question whether a particular act was done, the existence of any course of
business according to how it naturally would have been done, is a relevant fact”.

Implication
What this section simply means is that, if a thing is done or an act is performed, any fact that would prove that
the way it was done is the natural way of doing or performing such act or business is a relevant fact to any facts
in issue.

This section tends to be more useful to the accused; to raise evidence in his defence that the act or omission
allegedly done was merely a circumstantial effect of the natural way of doing a particular thing or business, so
as to render improbable the facts in issue. This is the principle applied in the case of;

LUCAS v. NWOFIKESKI [1975] 1 ESP 296.

It is a civil case. The plaintiff had sued the defendant, his employer for failing to pay his salary. In proof that
the employer had paid wages to the employer, evidence was admitted to the effect that it was the
employer’s practice to pay all his employees regularly every Saturday and that the employee in question had
been seen with others waiting to be paid and that he had not afterwards been heard to complain.

Relevant Facts as to how Matter alleged to be Custom Understood:

SA: Section 19 Evidence Act, 2011.

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It provides that: “Every fact is deemed to be relevant which tends to show how in particular instances a
matter alleged to be custom was understood and acted upon by persons then interested”.

Implication
This section simply means that, in relation to proving of custom, evidence of how the custom has been treated
and applied in the past by the persons who consider such custom binding on them is a relevant fact and
admissible as evidence to prove any facts in issue. Don’t forget that customs are a question of fact which has to
be proved. For instance, where a particular custom is the cause of litigation in court, where such custom has
not been judicially noticed, evidence by people who consider such custom binding on them (e.g., elders,
custodians or locals of the community concerned) about the previous application is a relevant fact to the
present issue and is therefore admissible. This shall take us to fully examine Evidence of Custom.

Evidence of Custom
Section 258(1) of the Evidence Act defines custom as: “Rule which, in a particular district, has, from long
usage, obtained the force of law”.

Custom is a question of fact, hence evidence must be adduced to prove such facts. A custom may be adopted
as part of the law governing a particular set of circumstances on any of these two (2) grounds

1. If it has been judicially noticed; S. 17 Evidence, Act; or

2. If its existence can be proved by evidence; S. 18(1) Evidence Act, 2011.
3. Customs reported by a Commission of Report

The burden of proving a custom lies upon the person alleging its existence.

1. Judicial Notice of Custom:

The law as to when a court may take judicial notice of a particular custom brought before it by the parties has
long been shrouded in controversy. Some argue that, such custom must have been acted upon by the court for
quite a number of times, while the others argue that just one application of the custom by the Supreme Court
will suffice to take judicial notice of the custom. The disparity in opinion as to when a court will take judicial
notice of a custom was borne by the provision of the section 14(2) of the Old Evidence Act which provides that:

“A custom may be judicially notice by the court if it has been acted upon by a court of superior or co-
ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that
the persons or the class of the persons concerned in that area look upon the same as binding in relation to
circumstances similar to those under consideration”.

The phrase “to an extent” in the above provision became the bane of controversy. In applying the provisions of
the section 14(2) of the Old Evidence Act, in some cases reliance was placed on a single and solitary decision of

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a superior court in taking judicial notice of a particular custom while in others it was not. In the case of Cole &
Anor v. Akinyele & Ors judicial notice of custom was taken based on reliance on a single and solitary decision of
a superior court.

COLE & ANOR v. AKINYELE & ORS [1960] 5 FSC 84.

The court considered the decision in the case of Alake v. Pratt as sufficient authority for it to take judicial
notice of the Yoruba custom that if the paternity of children is acknowledge by a man during his lifetime,
they are to be regarded as legitimate and entitled to share in his estate with his children born of a marriage
contracted under the Marriage Act. In this case Brett FL while commenting on the provision of section 14(2)
of the Old Evidence Act stated as follows:
“I would accept the decision in Alake v. Pratt as of sufficient authority to enable the court to take judicial
notice of the rule of Yoruba law and customs which was there held proved”.

While in the case of Giwa Abiodun v. Erimilokun the court deferred to take judicial notice of a particular upon a
single and solitary decision of a superior court in relation to a particular custom.

GIWA ABIODUN v. ERIMILOKUN [1961] 1 All NLR 294 at 296.

It was held that: native law and custom is a matter of evidence to be decided on facts presented before the
courts in each particular case, unless it is of such notoriety and has been so frequently followed by the courts
that judicial notice would be taken of it without evidence required to establish it.

The same was the decision in the case of

ROMAINE v. ROMAINE [1992] 5 SCNJ 1; [1992] 4 NWLR Pt.233 Pg..650 at 669.

The Supreme Court held that, “a custom could be judicially noticed only after frequent proof of and
pronouncements on the custom by courts”.

However, the controversy of judicial notice of custom created by the Old Evidence Act has soon been flushed
away by the section 17 of the Nigerian Evidence Act of 2011.

SA: Section 17 Evidence Act, 2011.

It provides that: “A custom may be judicially noticed when it has been adjudicated upon once by a superior
court of record”.

Implication
This means that, only one decision of a court of superior record upon a certain custom is sufficient to make
such custom become judicially noticed.

Section 18(3) of the Evidence Act, 2011 states certain conditions in which a custom must fulfill for it to be
regarded as being judicially recognized.

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SA: Section 18(3) Evidence Act, 2011.

It provides that: “In any judicial proceeding where any custom is relied upon, it shall not be enforced as law if
it is contrary to public policy, or it is not in accordance with natural justice, equity and good conscience”.

Implication
This means that, a custom must fulfill the following conditions for it to be judicially recognized;

i. It must not be contrary to public policy

ii. It must be in accordance with natural justice
iii. It must be in accordance with the principles of equity
iv. It must be in accordance with the principle of good conscience.
2. Proving of Custom by Evidence:

SA: Section 18(1) of the Evidence Act, 2011.

It provides that “Where a custom cannot be established as one judicially noticed, it shall be proved as a fact”.

Implication
This means that where a custom cannot be established as one been judicially noticed, in relation to section 19
of the Evidence Act, such a custom can be established and adopted as part of law governing particular
circumstances by calling evidence to show that persons or class of persons concerned in the particular area
regard the alleged custom as binding. In proving the fact of existence of a custom, opinions of persons who
would be likely to know of the existence of such custom may be adduced in evidence, so far it is in accordance
with the provisions of section 73 of the Evidence Act, as provided in section 18(2) of the Evidence Act.

The essence or need for a custom that is not judicially notice to be proved as a fact is predicated on the nature
of customary law; being that it is unwritten and highly flexible.

3. Customs reported by a Commission of Report

It is noteworthy that, in practice the existence of a custom can become established without going through the
process of judicial notice. A typical example is would be a custom recognized in the report of a Commission of
Enquiry which has gotten the acceptance of the State government of the community concerned. This was
reasoning in the case of:

JOHN ADAH v. GABRIEL ADAH [1998] 6 NWLR pt.552 pg.97 at 114.

Where two parties who were rivals for the position of a clan head of Ekenobi Clan of Idoma sought the
court’s endorsement of their individual claims. The question as a result boiled down to what was the
applicable customary law?

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The court upheld the appellant’s claim on the ground that it was consistent with the findings of a
Government Panel of Enquiry, whose findings had been accepted by the Government of Benue State.

Thus the combination of the Panel’s report and Government acceptance were treated as being equivalent to
judicial notice in this case.

RELEVANCY AND ADMISSIBILTY OF EVIDENCE

The obvious conclusion that can be drawn from our extensive examination of facts in issue and relevant facts is
that admissibility of evidence is dependent on the relevancy of the fact to the facts in issue. Hence, the
relevancy of a fact will determine whether it can be admissible as evidence. What is relevant is a question of
fact declared by the Evidence Act, and what is admissible is a question of law. See the case of: F.B.N. PLC v. JIBO
[2006] 9 NWLR pt.985 pg.255 at 272. And as stated in the case of:

AVONG v. K.R.P.C. LTD [2002] 14 NWLR pt.788 pg.508 at 530.

Per Umoren JCA as he was then known, stated that; “On admissibility, it is my humble view that admissibility
is a matter of law. The entire law of evidence is dependent to a large extent, on the rules governing
admissibility and inadmissibility of evidence. Whether a piece of evidence is admissible or not is dependent
on whether the fact to be established by the evidence is relevant to the facts in issue. Relevance is judged by
the provisions of the Evidence Act and not by any rules of logic. As a general rule, it is only facts which are
relevant in issue or some other facts relevant to the fact in issue that can serve as the foundation for the
admissibility of a piece of evidence. For a fact or piece of evidence to be admissible in evidence, it must be
relevant”.

It is the law that a piece of evidence which goes into the court’s records without passing the test of
admissibility which is ‘relevancy’, is not legal evidence and is therefore liable to be expunged even if admitted
by consent, see the case of: AGBI v. OGBEH [2006] 11NWLR pt.990 pg.65 at 119.

The courts have also held numerous times that proper custody can never be the basis of admissibility of a
document, hence it is immaterial whether a document was stolen or illegally obtained; it does not affect the
admissibility of such evidence so far it is relevant. It is also the law that the appropriate time to raise the
question of admissibility of a piece of evidence is when such evidence is produced in court and wishes to be
tendered and not before, see the case of: OBI-ODU v. DUKE [2006] NWLR pt.961 pg.373 at 419. Although, it
can still be challenged after it has been tendered – by appealing.

WEIGHT OF EVIDENCE
For the purpose of Law of Evidence, weight of evidence means the probative value a court ascribes or attaches
to a piece of evidence produced before it. By virtue of section 34(1) of the Evidence Act, 2011, a court before
whom evidence is produce has the power to ascribe or attach evidential value to such evidence taking into
account or consideration the circumstances of the case.

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It is the sole prerogative of a trial court to attach weight to the oral evidence given by witnesses in court, as it
stands at an advantage point to see and observe their demeanours, this is why the court can accept part of a
witness evidence and reject the other part. Though, this may not apply to documentary evidences.

The importance of weight of evidence in a proceeding is that it goes a long way in determining how the
pendulum will tilt or swing, as it is the party who has the weightier evidence that will win the suit. However, the
issue of weight of evidence cannot arise where evidence adduced has not been admitted by the court, as the
issue of weight of evidence arises after admissibility of evidence.

It is important to note that the wrongful exclusion of evidence or the wrongful inclusion of evidence by the
court in a case does not invalidate any correct judgement that is made by the court. This position is provided in
section 251(1-2) of the Evidence Act. Let us examine it.

SA: Section 251(1-2) Evidence Act, 2011.

Subsection (1): It provides that: “The wrongful admission of evidence shall not of itself be a ground for the
reversal of any decision in any case where it appears to the court on Appeal that the evidence so admitted
cannot reasonably be held to have affected the decision and that such decision would have been the same if
such evidence had not been admitted”.

Implication
The simple explanation to this subsection is that, where a court wrongfully admits evidence it shouldn’t have
admitted, and gave decision based on the evidence, such a fact will not on its self be a sufficient ground for the
court on appeal to reverse the earlier decision, provided it appears to the court on appeal that, even though
there was a wrongful admission of evidence by the lower court, the wrongfully admitted evidence did not
reasonably affect the decision by the lower court, as the decision of the lower court would have been the same
even where the evidence had not been wrongfully admitted. But if the reverse is the case, then such a fact will
be enough ground for the higher court to reverse the judgement of the lower court. As reasoned in the case of:

STATE v. OGBUBUNJO [2001] FWLR pt. 37 pg.1097 SC

Karibi-Whyte JSC stated that; “… Thus appellate court will not quash a decision or reverse judgement where
it is clear that expunging the admitted inadmissible evidence will not alter the decision of the court appealed
against…”.

Subsection (2): it provides that: “The wrongful exclusion of evidence shall not of itself be a ground for
reversal of any decision in any case, if it appears to the court on appeal that had the evidence excluded been
admitted it may reasonably be held that the decision may not have been the same”.

Implication

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This simply means that, where a court wrongfully exclude evidence that it should have admitted, and gave
evidence based on such exclusion, the existence of such a fact will not on its own be a sufficient ground for the
court on appeal to reverse the earlier decision, provided it appears to the court on appeal that, even though
there was a wrongful exclusion of evidence by the lower court, the wrongfully excluded evidence did not
reasonably affect the decision by the lower court, as the decision of the lower court would have remained the
same even where the evidence had not been wrongly excluded. But if the reverse is the case, then such a fact
will be enough ground for the higher court to reverse the judgement of the lower court.

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PRICIPLE OF RES GESTAE

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SIMILAR FACT EVIDENCE

This topic is one of the ‘Four Rules of Exclusion’ in the Law of Evidence, the others include; Evidence of
Character, Evidence of Opinion, and Evidence of Hearsay; evidence of any such matters is generally irrelevant
and inadmissible. Although, in each case, there are certain exceptions where evidence of any of such will be
admissible. Such exceptions are either provided for in the Evidence Act or are principles of the Common Law
made applicable by virtue of the Section 3 of the Evidence Act 2011.

What is a Similar Fact Evidence?

A similar fact evidence in the context of Law of Evidence can be succinctly defined as, a fact of past
occurrence(s) that is generally similar to the present fact in issue. A similar fact evidence must have occurred in
the past prior to the occurrence or litigation of the present fact in issue, or subsequently after it. A similar fact
evidence seeks to establish or make probable the present fact in issue by proving the existence or occurrence
of a past event which is similar to the present issue. For example, to say that Ann is the one who stole the
wristwatch in question, because she stole a particular wristwatch some weeks ago.

Facts are deemed to be similar to the fact in issue if it deals with the same person (the accused) and is identical
to the fact in issue. The weight of a similar fact bears a cogent or high probative weight in making probable the
fact in issue.

As a general rule, similar fact evidence is inadmissible to prove a fact in issue. This general rule is applicable to
both criminal and civil proceedings.

The Shortcoming/Reason for the Inadmissibility of Similar Fact Evidence

The peculiar reason and shortcoming for the inadmissibility of similar fact evidence is that, it is generally
irrelevant to the fact in issue. The only connection between similar fact evidence and the fact in issue is merely
the similarity in nature which might even be superficial or untrue. There is therefore no logical link between the
fact to be proved (the fact in issue) and that offered in prove of it (the similar fact). Such similar facts being thus

irrelevant are therefore inadmissible by virtue of section…..

Another shortcoming of similar fact evidence is that, in the case of criminal trials, using similar facts evidence to
prove the fact in issue allows the accused to be adjudged as the perpetrator, even where there may be no truth
in the fact in issue. Hence, the weakness in similar facts evidence is that it may be prejudicial to the accused in
the sense that, basing the guilt of the accused on the fact that he had committed a previous similar act is
merely a presumption which does not mean he actually committed the present act in question.

One other reason is the need to save the time of the court and to prevent the minds of the jury from being
diverted from the facts in issue.

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The Application of the General Rule

As earlier stated, similar facts evidence are generally in admissible in evidence; because they are irrelevant to
the fact in issue. This general rule is purely a product of the Common Law, as there is no provision of the
Evidence Act that specifically embody the rule. The Act only made provision for three (3) exceptions to the
general. However, the general rule is applicable in the Nigerian courts by virtue of section 3 of the Evidence Act
2011.

In its application to criminal cases, the general rule under Common law was first established in the case of;
MAKINS v. ATTORNEY-GENERAL OF NEW SOUTH WALES by the Privy Council. The case serves as the locus
clasicus to the general rule. We shall examine the case in details.

MAKINS v. ATTORNEY-GENERAL OF NEW SOUTH WALES

The Privy Council stated as follows: “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 he 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 is 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 above obiter by the Privy Council is of two limbs. One states the general rule and the other states the
exceptions available to the general rule at Common Law.

From the above obiter of the Privy Council, it is apparent that the prohibition of similar facts evidence in
criminal cases relates mainly to the use of such evidence for the sole purpose of proving the guilt of the
accused. This reasoning is undoubtedly rational. The fact that a man committed an offence earlier is no logical
basis for inferring that he must have committed the one for which he is being tried.

Another common law criminal case where the general rule was applied is the case of;

R v. THOMAS
The appellant was convicted in the High court for forgery of a letter of application for endorsement of
Import License. At the trial, the prosecution gave evidence of a series of other similar transactions
involving import licenses by him. On Appeal, the conviction was quashed since the evidence was not
relevant to the charge before the court but merely was prejudicial to the appellant by showing him as a
dishonest man.

A common law civil case where the general rule was applied is the case of:

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HOLLINGHAM v. HEAD [1858] 27 L.J.C.P. 241.

It was an action in contract, on the issue whether the plaintiff contracted with the defendant subject to
special terms, evidence that he made similar contracts with other persons subject to special terms was
held inadmissible. Hence, the fact that a man has once or more in his life acted in a particular way does
not make it probable that he so acted on a given occasion.

Nigerian Cases where the General Rule was Applied.

The Exceptions (At Common Law).

The second limb of the Makin’s case made provision for certain exceptions to the general rule, under which
similar fact evidence may be admissible in evidence. The four Exceptions stipulated under Makin’s Case area;

1. Where the past fact is relevant to the present issue before the court; in such a case, there must be a
contemporaneousity of the similar act with the present act (the fact in issue).
2. Where the accused raises or pleads the defence of lack of intention or accident
3. It will be admissible to rebut any defence that may be open to the accused.

The Exceptions (Under the Evidence Act 2011)

SA: Section 12 Evidence Act, 2011.

It provides that: “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”.

Implication
This section of the Evidence Act is the statutory version of the exception to the general rule that was laid down
by the Privy Council as stated in the second limb of the Makin’s Case. The exceptions include;

1. Similar fact evidence is admissible where there is question to determine whether an act is accidental or not;
2. Similar fact evidence is admissible where there is question to determine whether the act was done with a
particular knowledge or intention; and
3. Similar fact evidence is admissible to rebut any defence that may be otherwise open to the accused.

Now, we shall examine each of these exceptions and see how they have been so far applied in the Nigerian
Courts.

In a criminal trial, the question of whether an act was accidental or not mostly arises where the accused raises
a defence to the effect that the fact in issue contended or the act or omission by him was accidental. In such

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an instance, a very effective way of rebutting such a defence is for the prosecution to adduce/prove earlier
similar acts or omission by the accused. As reasoned in the following cases;

R v. FRANCIS [1874] L.R.2C.C.R. 128.

Here, an accused was charged with obtaining money by false pretence, that a particular worthless ring
was valuable. Evidence of earlier similar representation was allowed to rebut the defence that he did not
know that the ring was worthless.
R v. MORTIMER [1936] 25 G APP. R150
Here, the accused was under trial for the murder of a female cyclist by crushing her to death with his car.
His defence was that the collision was accidental. To rebut this defence, evidence was admitted that he
had collided with other female cyclists both earlier and later the same day.

There are also available Nigerian cases where this principle was applied; although before the advent of the
Evidence Act, but these decisions could have also been justified by the section 12 of the Evidence Act, 2011. A
few of them are;

R v. ADENIJI AND OTHERS [1973] 3 WACA 185.

The appellant was charged for being in possession of moulds for minting coins, contrary to section 148(3)
of the then Criminal Code. The West African Court of Appeal held that, evidence of previous uttering of
counterfeit coins by him was admissible in order to prove guilty knowledge.

THOMAS v. COMMISSIONER OF POLICE [1949] 12 WACA 490.

The appellant was charged with stealing a number of tickets entrusted to him by a Race Club for public
attending a race meeting. It was proved that in some of the books of ticket given to him to sell, a few of
the tickets had been removed from the bottom of the book, instead of from the top downwards serially
evidence was also given that on a previous occasion tickets have been removed from the bottom of the
books issued to the appellant for sale, that is, in a similar manner. Objection was taken to this latter piece
of evidence but it was held that, it was both relevant and admissible.

In civil action, a good case where this exception was applied is the case of;

BEBEE v. SALES 32 T.L.R. 413.

Here, a parent was sued for damages caused by his child’s air-gun. Evidence that the child had previously
broken a window with the gun and that the parent had promised to destroy the gun was held admissible
to show the parent’s knowledge of the danger constituted by the child’s gun and to knock off their
defence of accident, so as to establish the parent’s negligence.

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It is important to note that, the similar acts of which evidence is admissible may be prior to subsequent to the
one in issue but they must have occurred within a reasonable limit of time. See the case of: R v. ARMSTRONG
[1922] 2 K.B. 55 and R v. RHODES [1899] Q.B. 77.

Also, in a criminal case a trial court has the discretionary power not to admit evidence of similar fact if its
prejudicial effect outweighs its evidential value. See the case of; NOOR MOHAMMED v. R.

It is also noteworthy that, under the old judicial authorities before the advent of the principle in Makin’s case
and the section 12 of the Evidence Act, that allows for the admissibility of similar fact evidence, there can be no
scope for the application of principle in Makin’s case if the defence by the accused is denial of the acts
constituting the offence. Hence, formerly before the advent of the principle in Makin’s case under which similar
facts evidence may be admissible, a similar fact evidence will not be admissible if the accused raises defence
denying the acts which constituted the alleged offence. As reasoned in the case of;

NAPARO BRUIMA AL-HASSAN v. COMMISSIONER OF POLICE [1944]

Here, the appellant was entrusted with the duty of engaging labourers to work in Government farms. In
the charges he was indicted with receiving bribes from four named labourers before engaging them. He
denied the allegations but nonetheless the prosecution led evidence of two previous extortions of bribes
from other persons.
It was held that evidence of previous extortions of bribes from other people had no bearing with the
charge in issue.
The court further stated that, “We would however, like to make it perfectly clear that had the appellant,
for example, raised the issue by way of defence that although he had received the money in question on
the date mentioned in the charge, it was not received with any criminal intent but with some such object
as to buy provisions for the labourers in question then…, the prosecution would have been entitled to call
evidence that on previous occasions the appellant had received sums of money from labourers under
circumstances similar to the present”.

However, considering the date and time of this decision, it is safe to say that the reasoning and the decision of
the court might have been different considering the current position of the law, i.e. the Evidence Act 2011, and
the principles in Makin’s case.

Principles under the Evidence Act, where Similar Fact Evidence is Admissible

Here, we shall examine some other principles of law under which a similar fact evidence may be admissible
other than in the circumstances of the exception at common law and the Evidence Act i.e. section 12.

1. Common origin
2. To show system
3. Proof of identity
4. Actions for damages by domestic animals.

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1. Common Origin:
Evidence of similar facts is also admissible where the facts relate to subject-matters that have a common origin.
In this type of case, the similar facts are generally similar acts done with respect to the subject-matters which
are different parts of a common whole. Here, similar facts of an act will be admissible if the present act and the
similar act are o the same origin. The logical basis on which such evidence is admitted is the originating
connection between the subject-matters or the acts, i.e., the present act (fact in issue) and the other similar
acts. For example, where the quality of milk delivered by a dairy-man to a customer was in issue, evidence of
other delivery made to another customer was admissible once the two deliveries were extracted from the
same cows and at the same milking, but such similar fact evidence will not be admissible if the milk was gotten
from different cows; or if from the same cows, it was milked at a different time. See the cases of: MANCHESTER
BREWERY v. COOMBS 82 L.T. 347 at 349.

Under the Evidence Act, 2011 the principle of common origin as a means of admitting similar fact evidence has
particular application in land matters, as established in section 35 of the Act.

SA: Section 35 Evidence Act, 2011.

It provides that: “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”.

Implication
This section simply means that, in issues of ownership of land or right of occupancy of land, the acts of
possession and enjoyment of land may be evidenced by the defendant by giving evidence of lands so situated
or connected with the land in dispute by locality or similarity, so as to establish that what is true to one piece of
land (the land in dispute) is true of the other pieces of land. Hence, a person can establish ownership of a
particular land by giving evidence/reference of other lands owned by him which are either similar to the one in
dispute or which are of the same locality as the one in dispute; so as to prove that, what is true about the land
in dispute is also true about the other land. As reasoned in the case of:

OKECHUKWU AND OTHERS v. OKAFOR AND OTHERS [1961] All NLR 685.
Here, plaintiffs/appellants claimed a vacant piece of land against the defendants/respondents. There
were portions of land adjoining the one in dispute to the north and east and over which the plaintiff were
in possession and in enjoyment of. They further asserted that their title to all these parcels of land were
derived from the same grant. It was held that their acts of possession and enjoyment of the lands
adjoining the disputed one constituted sufficient evidence to support their claim of title to that one by
virtue of section 46 of the Evidence Act, 2004 (now section 35 of the Evidence Act, 2011).

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However, it is noteworthy that, for the provisions of this section to apply, there must have been admission by
the opponent that the land in dispute was surrounded by other lands belonging to the party seeking to invoke
the section 35.

2. To Show System:
It is also called systematic course of conduct. This is a system that is tends to prove the guilt of the accused by
showing a series of almost identical incidents made by the person to establish his guilt. Unlike where a single
act of the accused can be adduced so as to rebut his defence, to establish a systematic course of conduct a
single act is not always admissible. What is s=required is a series of almost identical incidents by the accused.
The logical basis upon which similar fact evidence is admitted in this sort of cases “the inherent unlikelihood of
coincidence”, hence, to show that the series of other similar acts of the accused in relation to the present one
cannot be just mere coincidence accident. Therefore, to establish this fact, many allegedly accidental
occurences/acts of the accused can be shown to be designed/intentional, by proof that they happened before
and if the present occurrence in question is not the second, but the third or fourth in a series of identical
incidents made by the accused, the inference becomes compulsive that the occurrences are not just
coincidental accidents but are intentionally produced. A beautiful case which illustrates this principle is the case
of:

R v. SMITH [1915] 11 Cr. APP. R.299.

Here, the accused was on trial for the murder of his wife. She was found dead in her bath and that was
shortly after he had insured the wife’s life in his favour. Previously, two former wives of his had also died
in similar circumstances, i.e. in their baths and after he had insured the life of each in his favour. The
accused contended that the wife died of epilepsy. To show that the death was a part of system devised by
the accused with the object of claiming insurance benefits after killing the wives, the prosecution was
permitted to give evidence of the two previous deaths and their circumstances.

Under the Evidence Act, 2011 the principle of to show conduct or systematic course of conduct as a means of
admitting similar fact evidence has particular application in receiving of stolen property matters, as established
in section 36(1-2) of the Act.

SA: Section 36(1-2) Evidence Act, 2011. It provides that:

(1) Whenever any person is being proceeded against for receiving any property, knowing it to have been
stolen or 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 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;

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(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.

Implication
Everything in this section is summarily talking about adducing similar facts evidence to prove the guilt of a
person who his tried for receiving of stolen property or being in possession of stolen property. The section
provides for the instances where such similar facts evidence can be adduced and the conditions precedent for
it to be adduced.

Subsection (1) gives the general provision that in other to prove the guilty knowledge of a person who is tried
for receiving of stolen property or who is found in its possession, similar facts evidence can be adduced at any
stage of the proceeding.

Paragraph (a) of subsection (1) gives the first instance and type of similar fact evidence that can be adduced
against such person stated in subsection (1); which is similar facts showing that other stolen property within
the period of 12 months before the date of the present offence charged/tried was found in the accused
person’s possession or had been in the accused person’s possession. In such an instance, the accused may be
deemed guilty of the present charge.

Paragraph (b) of subsection (1) gives the second instance and type of similar fact evidence that can be adduced
against such person stated in subsection (1), together with the pre-conditions for the admissibility of such
evidence; which is similar facts evidence showing that within the period of 5 years before the date of the
present offence charged/tried, the accused person had been convicted of any offence involving fraud or
dishonesty.

However, for similar facts under paragraph (b) to be admissible, it has to fulfill the pre-conditions provided in
subsection 2(a-b).

Paragraph (a) of subsection (2) provides for the first condition which is; giving of a 7 days notice in writing to
the accused person that proof of any of his past conviction(s) of fraud or dishonesty within the past 5 years (is
intended to) will be adduced in evidence.

Paragraph (b) of subsection (2) provides for the second condition which is; evidence must have been given that
the property upon which the accused person is been tried was found in his possession or had been in his
possession.

So in summary, the two (2) conditions for the admissibility of similar facts evidence under subsection 1(b) are;

i. 7 days written notice must be served to the accused that evidence of his previous conviction(s) of fraud
or dishonesty will be given against him
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ii. Evidence must have been given that the stolen property was found or had been in the accused
possession.

4. Actions for Damages by Domestic Animals:

This mostly applicable in civil cases. In an action in tort for damages caused by a “domestic animal” which is not
by nature vicious or dangerous, similar fact evidence of past damages by the animal to the knowledge of its
keeper is relevant. For example, in other to prove or establish that the defendant’s dog was the one who killed
the plaintiffs sheep in the present issue, the fact that the same dog had earlier killed another sheep belonging
to the plaintiff is admissible. See the case of: LEWIS v. JONES 49 J.P. 198.

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ADMISSION AND CONFESSION

Admission and confession has been classified under facts that needs not be proved. In other to establish the
truth or veracity of any fact in issue, reliance can be placed on admissions and or confessions made by a party
to the case. The question therefore is what is admission? And what is confession?

ADMISSION
Generally, admission can be defined as an express or implied concession by a person (a party to a suit) of the
truth of an alleged fact. Hence, admission is any statement or assertion made by a party to a case against
himself in acknowledgement of the truth of the facts in issue. This definition is aptly for formal admission

Statutorily, admission has been defined in section 20 of the Evidence Act, 2011 as; “An admission is a
statement, oral or documentary, 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, hereinafter mentioned”. This definition is aptly
for informal admission.

As a general rule of law, admission must be adverse to the person making it. Hence, it must be against the
interest of the person making it i.e., it must be detrimental to his interest. And in the case the admission is
made by an agent, such statement must be adverse or against the interest of his principal.

Forms/Types of Admission

There are basically two forms of admission, namely;

1. Formal Admission; and

2. Informal Admission.
1. FORMAL ADMISSION
Formal admission is a concession made by one of the parties to a suit of the truth of an alleged fact. Formal
admissions are mostly made in pending civil proceedings (in pleadings). Thus, pleadings in pending litigation are
deemed to be admission and are treated as conclusive without further proof. Therefore, no party can turn
around to deny them. As succinctly explained by Aguda; “A formal admission is usually in a pleading and facts
admitted in a pleading may be taken as established without proof…”. Where the truth of a fact is thus
admitted, proof of such fact is deemed to have been dispensed with it, as it would be superfluous and amount
to wasteful dissipation of energy to prove what has already been admitted to be true. Formal Admission is
strictly pleading and must be written.

Admitted facts such as YES, needs no further proof. Similarly, the parties to a suit may admit certain facts in
their pleadings and those facts so admitted do not require further proof. For instance, a Defendant may admit
certain averments/facts in the Claimants statement of claim if he does not refute or controvert such
averments/facts in his own Statement of Defence. Or on the other hand, the Defendant may raise new issues in

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his Statement of Defence and where the Claimant does not refute or controvert those allegations in the
Defendant’s Statement of Defence in his reply, he will be deemed to have admitted those facts. This is the
position of the Order 15 Rule 5(1) of the Lagos Rules which provides that, “Every allegation of fact in any
pleadings if not specifically denied in the pleadings of the opposite party shall be taken as admitted, except
as against a person under legal disability”. This is clearly provided also in; section 123 of the Evidence Act,
2011 that;

“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 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 b such
admission”. As reasoned in the case of;

AKINLAGUN v. OSHOBOJA [2006] 12 NWLR pt. 993 pg.60.

Here, the respondent sued for declaration of the title to a customary right of occupancy and that the
appellants were the customary tenants. On appeal to the Supreme Court by the appellants, it was
contended on their behalf that the respondent failed to prove title in the High Court to warrant a
declaration of title to the land made in his favour, even though they had admitted in their pleadings to be
customary tenants to the respondent.
It was held that, what is already admitted needs no further proof.

Formal Admission can also be made by interrogatories served on the parties (see Order 30 of the High Court of
the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004), or by a Notice to Admit (see Order 19 Rule 2
of the High Court Rules of Lagos State 2004). In a situation where a party fails to admit certain facts, which
ordinarily he should, the rules of court impose certain penalties. For instance, Order 19 Rule 3(3) of the High
Court of Lagos State (Civil Procedure) Rules 2004, provides that;

“Where there is a refusal or neglect to admit the same within time as may be allowed by the judge, the cost
of proving such facts which shall not be less than a sum of five thousand naira, shall be paid by the party so
refusing or neglecting whatever the result of the proceedings, unless the judge certifies that the refusal to
admit was reasonable or unless the judge at any time otherwise orders or directs”.

Just as earlier stated, admission of fact(s) may be made by the parties to the suit themselves or by an
authorized agent. For example, admission can be made by a legal practitioner on behalf of his client. However,
any statement made by parties to suit, who are suing or being sued in a representative capacity are not
deemed to be admissions, unless such statements were made while such persons are acting in that capacity
i.e., such a statement will only be deemed to be admission if the person being represented made it himself, as
provided in section 21(2) of the Evidence Act, 2011 (to be examined under informal admission).

Likewise statements made by persons to whom a party to the suit has expressly referred for information in
reference to a matter in dispute is also treated as admission by the court, by virtue of section 32 of the

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Evidence Act, 2011 (to be examined under Informal admission). Hence, where a person with a special
knowledge about certain fact(s) in the issue is asked/referred by a party to the suit to give some information
about it, in such instance any statement so made by the person would be treated as admission being made by
the party to the suit who referred the person to give such information; and he would be taken to be stating his
(the party’s) view or knowledge.

It is also the law that, oral admission as to contents of a document are not relevant, therefore inadmissible.
This is so because documentary evidence excludes oral evidence. As reasoned in the case of’

B. MANFAG NIG. LTD v. M/S.O.I. LTD [2007] 14 NWLR pt. 1053 pg.109 at 139.
The Supreme Court held that, where there is documentary evidence on an aspect of a party’s case, no oral
evidence is admissible on that aspect.

This is so because, Nigerian adjectival Law does not admit oral evidence on an aspect or area covered by
document. A party cannot benefit from two ways: documentary evidence and oral evidence at the same time.
He can only lead evidence in respect of one and not the two of them.

However, there are certain instances where a party may be allowed to use oral admission (evidence) to prove
the content of a document, these are;

i. Where the genuineness of the of the document produced is in question; and

ii. Where the party can show that he is entitled to give secondary evidence of the content of such
document.

Formal admission can also be by way of negotiation i.e. plea bargaining. Therefore, where upon negotiation an
agreement is reached between the parties to admit to some facts in the issue, any admission of facts made will
be admissible. However, where no conclusion is reached upon negotiation, whatever admissions the parties
make during negotiation cannot be given in evidence or considered binding; such statements are called
“statements in documents marked without prejudice”. Two (2) provisions of the Evidence Act, 2011 are to this
effect; section 26, and section 196.

SA: Section 26 Evidence Act, 2011.

It provides that: “In civil cases no admission is relevant, if it 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.”

Implication

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Section 26 is simply saying that, admission of facts made during negotiation which later broke down cannot be
given in evidence if the parties have agreed that it should not be given in evidence; or where from obvious
circumstances the court can infer so. The section however made proviso that, any such agreement between
the parties does not exclude a legal practitioner from giving evidence of any matter of which he may be
compelled to give evidence under section 192, e.g., when there is any illegality or fraud.

SA: Section 196 Evidence Act, 2011.

It provides that: “A statement in any document marked “without prejudice” made in the course of
negotiation for a settlement of a dispute outside court, shall not be given in evidence in any civil proceeding
in proof of the matters stated in it”.

Implication
Section 196 deals with where the admission has been scheduled into writing.

It simply implies that, in the instance of documentary evidence, where there is in the content of the document
any statement marked “without prejudice” as a result of negotiation for outside court settlement, such
statement cannot be adduce or admissible as evidence to prove the fact it relates to. As reasoned in the case
of;

FAWEHINMI v. N.B.A [1989] 2 NWLR pt. 105 pg. 558 SC.

Here, the appellant, a legal practitioner had some conflict with the NBA. In order to resolve the conflict, a
reconciliatory meeting was arranged between the plaintiff and the NBA by Sir. Adetokunbo Ademola. At
the meeting, the plaintiff recorded the proceedings on tape in which the defendants in this case made
some admission. The plaintiff then brought up an action against the NBA and sought to tender in
evidence the alleged admission made by the defendant at the reconciliatory meeting.
The Supreme Court inter alia that the appellant was not at liberty to tender in evidence the conversation
that ensued between the parties during negotiation, as same was made without prejudice.

Despite the fact that admitted facts needs no further proof, it should be noted that formal admissions are not
conclusive proof of the matters admitted; the court has the discretion to require such admitted facts to be
otherwise proved pursuant to section 123 of the Evidence Act. Although such admitted facts may operate as
estoppel pursuant to section 169 of the Evidence Act, 2011.

DOCTRINE OF ESTOPPEL AND ADMISSION

Here, we are looking at the relationship between the doctrine of estoppel and Formal Admission of facts i.e.,
the instances where a party will be estopped from denying any admitted fact, especially where the court
requires such fact to be proved. This is dealt with in section 169 and 170 of the Evidence Act, 2011.

SA: Section 169 Evidence Act, 2011.

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It provides that: “When one person has either by virtue of an existing court judgement, deed or agreement or
by his declaration, act or omission, intentionally caused or permitted another 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 proceedings
between himself and such person or such person’s representative in interest, to deny the truth of that thing”.

Implication
The simplest interpretation of this section is that, a party or person representing his interest, who by any
means such as; deed or agreement, act or omission etc., makes admission of any facts in issue, and causes the
other party or any person representing his interest to act upon such fact will be estopped from later denying
such admission in any proceeding between himself or person representing his interest and the other party or
person representing such person’s interest. So, where a party to a suit tries to disprove already admitted fact
by him, the opposition can invoke this section, except the court insists that such admitted facts be proved.

SA: Section 170 Evidence Act, 2011.

It provides that: “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
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”.

Implication

2. INFORMAL ADMISSION
Before we delve into what informal admission entails, we shall have a quick view of the differences between
formal admission and informal admission. Some of which are;

1. Facts admitted under informal admission are not conclusive proof of such facts in issue as they may be
contradicted, explained or denied, although they may operate as estoppel. While formal admission are
conclusive proof;
2. While formal admissions are usually made with a view to a proceeding, informal admissions are usually
made without reference to any proceedings and before proceedings are contemplated.
3. Unlike formal admissions, evidence of informal admission is usually regarded as an exception to hearsay
rule.

What is Informal Admission?

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Informal admission can be simply defined as any statement oral or written, expressed or implied, which is
made by a party to civil proceedings and which statement is adverse to his case.

As earlier stated, section 20 of the Evidence Act, 2011 gives a statutory definition of admission, which aptly is a
definition to informal admission. So, statutorily informal admission according to section 20 of Evidence Act,
2011 means;

“An admission is a statement, oral or documentary, 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, hereinafter mentioned”.

Under Common Law, ‘conduct’ of a party may be taken as an admission; such conduct may even be passive
such as remaining silent in the face of a question directed to one. As stated in the case of;

BESSELA v. STERN [1877] 2 CP 265.

In action for breach of promise of marriage, the defendant’s failure to give any direct reply when the
plaintiff said to him, “You always promised to marry me, and you don’t keep your word”, and all the
defendant could do was to give her money to go away, was held to be an admission.

The Nigerian courts, following the Common Law position as espoused in the above case, have also held that
admission may be by conduct. As was applied in the case of;
CHIEF D. AKINBIYI v. RALIATU ANIKE [1959] W.R.N.L. 16.
Here, the counter-claimant had tendered a list of goods belonging to her which she alleged was
wrongfully detained by the plaintiff. The list was admitted in evidence without objection. Besides, the
plaintiff failed to cross-examine the defendant/counter-claimant on the list so as to dispute its accuracy.
The plaintiff’s conduct was held to amount to admission.

However, it is pertinent to point that the inclusion of ‘conduct’ as a form admission is one of the many
improvement of the 2011 Evidence Act, which repeals the 2004 Evidence Act. It is now the law that, conduct of
a party may amount to admission and it is immaterial that the conduct is passive, such as ‘silence’.

Failure to cross-examine the opposition as to the accuracy of his statement of claim or counter-claim in his
statement of defence is admissible as an admission evidence to establish the accuracy of the claim/fact.
Although, depending on the circumstances of each case, the court may and may not admit such admission as
admissible.

It is should be noted that, the person to whom an informal admission is made is immaterial; it may be made to
a party to the suit or to a total stranger (an alien to the suit). What is material is that it should be made by the
party to the suit himself or his authorized agent (e.g., legal representative), so that it may be an admission.
Please, be aware that, admission made by a stranger to a party to the suit is not binding on the other party in
whose adverse interest or detriment it is made. This principle was first established in the case of: H.
MOHAMMED v. LOCAL GOVERNMENT POLICE [1970] 2 ALL NLR 202. However, such admission may be come

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binding on the party in whose adverse interest it was made if the stranger had made the admission upon his
express or implied authority. As stated in the case of;

ORJI v. ANYASO [2000] 2 NWLR pt. 643 pg.1.

It was held that, for a relationship to amount to agency that will be binding on another party, the agent
must be conferred with authority either express or implied.

Scenario does not affect the admissibility of admission, but the weight to be attached to it is the material thing.
Hence, the circumstances under which an admission is made may affect the weight to be attached to it by the
court but certainly, not its admissibility. For example, an admission made by a party when drunk is still an
admission though the weight might be lighter, as compared to one made during sober moment.

One peculiar point about informal admission is that it is not conclusive; evidence may be given to vary or
contradict it, unlike informal admissions that is conclusive. Although, it may operate as estoppel. As stated in
section 26 of the Evidence Act, 2011 that;

“Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the
provisions of Part VIII of this Act”.

Persons Capable of making Admissible Admission

The Act spells out in sections 20 to 22 persons whose admission is relevant and admissible. They include;

1. Admission Privies i.e., the parties or agent of the party to the proceedings;
2. A party acting in representative capacity;
3. A party interested in the subject matter of proceedings;
4. Predecessor in title;
5. Persons whose position must be proved as against a party to the proceedings; and
6. Persons expressly referred to by a party to the proceedings.

Note that everything we shall discuss under this heading applies to both formal admission and informal
admission.

1. Admission by Privies i.e. the Parties or Agent of the Party to the Proceedings:
This is provided for in section 21(1) Evidence Act, 2011.

It provides that: “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 authorized by him to make them,
are admissions”.

Implication

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This provision simply means that, any admission, oral or documentary, made by a litigant or his agent prior to
the institution of the action, is admissible in evidence against him. This applies also to such statements made by
a party himself (litigant) while he was still a minor; see the case of; O’NEIL v. READ 7 iv L.R. 434.

However, for a statement made by a party(litigant) to the proceedings to qualify as admission, it must have
been made based on the personal knowledge of the party and adverse to the interest of the party. This
principle was clearly postulated in the Supreme Court case of;

SEISMOGRAPH SERVICES (NIG) LTD v. CHIEF KEKE EYUAFU [1976] 9 & 10 S.C. 135.
The Supreme Court stated that; “A statement oral or written (expressed or implied) made by a party to
civil proceedings and which statement is adverse to his case is admissible in the proceedings as evidence
against him of the truth of the facts asserted in the statement. Where, however, an admission is not
based on personal knowledge of the maker of the facts admitted such admission can hardly be of any
value”.
If the statement is made by an agent to the party (e.g., legal representative), for such statement to qualify
as admission, there must be an agency relationship in existence between the two parties (i.e., the maker of
the statement and the party to the proceedings), and it must be statement made after the agency is
created and not before.
Also, statements of result of poll prepared and signed by assistant returning officers are admissible as
admission by the officers in favour of a petitioner in an election in which the returning officer himself is
joined as a respondent.

2. A party Acting in Representative Capacity:

This is provided for in section 21(2) Evidence Act, 2011.

It provides that: “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”.

Implication
First, it is important to know what representative capacity or character means in respecting of a legal
proceeding. A person sues or is sued in a representative capacity or character, when he becomes a party to a
suit (a litigant) in the interest of another person. A person suing or being sued in a representative capacity or
character may necessarily not be a legal practitioner. For example, a family may choose a certain member of
the family to represent it.

So, what this provision is saying is that, any admission made by any party who is suing or is sued in the interest
of another person will not amount to an admissible admission unless he makes such admissions in his
representative capacity or character. The persons represented cannot therefore be prejudiced by admission
made by the representative before he assumed or after he ceased to assume that character. See the case of:

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NEW TRUSTEES v. HUNTING [1897] 1 AB 607. For instance, where Ann was chosen by her family members to
represent them in a land dispute between Ann’s family and another family, any admission made by Ann to the
other family before her appointment will not amount to a valid admission, but the ones she made after the
appointment will.

3. A Party Interested in the Subject Matter of the Proceedings:

This is provided for in section 21(3)(a) Evidence Act, 2011.

It provides that: “Statements made by persons 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”.

Implication
This simply means that, if a statement is made by a person who has pecuniary or propriety interest i.e., lien in
the subject-matter of the litigation, such statement would be held to be admission if it was made while the
person held such character as a person who has interest in it. It should be noted that, such person must have
made the statement against his own interest.

If the subject-matter of the proceedings is land, a person who claims to be a beneficial owner is an example of
a party interested and any statement adverse to his interest made by him will be deemed as admission under
this section.

4. Predecessor in Title:
This is provided for in section 21(3)(b) Evidence Act, 2011.

It provides that: “Statements made by persons 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
person making the statements”.

Implication
The above provision simply implies that, any statement made by the owner of the subject-matter of a suit;
from whose the two parties to the suit derived their interest is deemed to be admission, if the maker of the
statement (the owner) made it while he is still the owner of the subject matter.

A good illustration to this provision is the relationship between a landlord and his two tenants. Where there is
an issue between the two tenants as to who has the right exclusive right of enjoyment of a particular section of
the house to the other. Any statement given by the landlord as a witness, e.g., that Tenant (A) has the exclusive

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right over the particular section of the house in dispute amounts to admission to the adverse interest of the
Tenant (B) as it touches on the subject matter of the suit. In the case between;

SMITH v. SMITH [1836] 3 Bing. N.C. 29

The plaintiff sued the defendant to recover a watch which the defendant claimed to retain as the
administrator of the deceased owner of the watch. In his life time the deceased said that he had given the
watch to the plaintiff. It was held that this statement by the deceased was evidence against the
defendant.

Also, a declaration on oath by a head of family that a piece of land belonged jointly to his family and others
thus limiting his own title is admissible against all persons claiming through him. However, the provision of
paragraph (a) and (b) of this section should not be construed as to bind a whole family with the statements
made or document tendered by an individual in a suit in which he was sued as an individual and not as a
representative of the family. See the case of: AJIEGBE v. ODEDINA [1988] 1 NWLR 584.

Remember that, the statement must have been made by the owner while he still holds the exclusive right of
ownership on the subject-matter in dispute.

5. Persons whose Position must be Proved as against a Party to the Proceedings:

This is provided for in section 22 Evidence Act, 2011.

It provides that: “Statements made by persons whose position or liability it is necessary to prove 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”.

Implication
The simplest illustration to this section is the illustration given in the Indian Evidence Act which contains an
identical provision. The illustration is; if X undertakes to collect rents for Y. Y sues X for not collecting rent due
from Z to Y. a statement by Z that he owes Y is an admission and is admissible against X if he denies that Z owed
rent.

6. Persons Expressly Referred to by a Party to the Proceedings:

This is provided for in section 23 Evidence Act, 2011.

It provides that: “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”.

Implication

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What this section means is that, in a civil action, where either of the parties in any pending legal proceeding
makes a referral to a third party for any information in relation to the subject-matter of the dispute (i.e fact in
issue), if the third party gives any information which is adverse to the interest or claim of the referrer, such
information would be taken as admission. For example, if the ownership of a piece of land is in dispute, and
one of the parties expressly refers to a third party for information, any statement made by the third party
which is adverse to the interest of the party will be held as admission. Note that, such referral of the third party
by the party to the suit must be express; it must not be implied.

This principle also applies in criminal proceedings similar to that in civil proceedings, as reasoned in the cases
of;

DANIEL v. PITT [1806] 1 Camp 366.

Here, the action was for goods sold and delivered. The defendant stated that he would pay for the goods
if the plaintiff’s car-man should assert that indeed he delivered the goods to him. The car-man in answer
admitted making the delivery.

It was held that the admission by the car-man was evidence of delivery of the goods against the defendant.

R v. MALLORY [1884] 13 QBD 33.

Here, the accused person had told a constable that his wife would prepare (draw up) a list of properties
which were the subject-matter of an inquiry. The list, which was afterwards made by the wife, was held
as admission of possession of the listed properties by the accused person.

RELEVANCE OF ADMISSION AND AGAINST WHOM THEY ARE PROVABLE

The general rule is that admissions are relevant. They are relevant to the fact in issue, hence, they render
probable the fact in issue (this is because they are statements of fact. made by a party to the suit against his
own interest in the suit).

It is also a general rule that, admission is provable only against the person who made them or his
representative in interest. They cannot be proved by or on behalf of such person (who made them) or his
representative in interest (who made them). In other words, an admission can only be established by the
person who made it or by his representative (who made it), it cannot be established by any other person on
their behalf.

The above general rules is also established in section 24 of the Evidence Act, 2011, however, there are certain
exceptions to the general that admission cannot be proved by third party against a party to the suit as provided
in paragraph (a-c) of the section 24.

SA: section 24(a-c) Evidence Act, 2011.

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Section 24 Preamble: it provides that: “Admissions are relevant and may be proved as against the person
who makes them or his representative in interest, but they cannot be proved by or on behalf of the person
who makes them or by his representative in interest, except in the following cases -”.

Implication
This provision establishes that, admissions are relevant facts. Hence, they are relevant to the fact in issue. It
also goes on to establish the general rule that, admission can only be proved as against the person who made it
or by his representative in interest, but it provides certain exceptions to it which we shall examine under the
paragraph (a-c).

Paragraph (a): it provides that: “An admission may be proved by or on behalf of the person making it when
it is of such nature that, if the person making it cannot be called as a witness, it would be relevant as
between third parties under section 39 to 45”.

Implication
This simply means that, an admission can be proved (established) by a third party on behalf of the person who
made it (the party), if the person who made it cannot be called as a witness. Hence, in a situation where the
maker of the admission is dead,; cannot be found; has become incapable of giving evidence, etc, then such
statement or admission can be proved (established) on their behalf.

The same principle also applies where the statement is a dying declaration; statements made in the course of
business; statement against the interest of the maker with special knowledge; statements relating to the
existence of a relationship by blood, marriage or adoption; and declaration by testators etc., (see section 40-
45). This serves as the first exception to the general rule that admission can only be proved as against the
person making it or by his representative in his interest.

Paragraph (b): it provides that: “An admission may be proved or on behalf of the person making it, when it
consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the
time when such a state of mind existed, and is accompanied by conduct rendering its falsehood improbable”

Implication
This simply means that an admission can be proved (established) by a third on behalf of the maker under the
following circumstance;

1. The statement is of the existence of any state of mind or body

2. The state of mind or body is a relevant fact or a fact in issue
3. The statement was made at or about the time when the particular state of mind existed
4. The statement is accompanied by conduct rendering its falsehood improbable.

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For instance, where a man makes a statement that he has since been severely ill and he is still currently
admitted in the hospital. Where such a statement amounts to admission of unfitness, the act of being admitted
or continuous admission in a hospital would then constitute a conduct tendering its falsehood improbable and
such admission can be conveniently proved on behalf of the man who made it.

Paragraph (c): it provides that: “An admission may be proved by or on behalf of the person making it, if it is
relevant otherwise than as an admission”.

Implication
This simply means that,

EXCLUSION OF ORAL ADMISSIONS OF THE CONTENT OF DOCUMENTS AND WHEN IT MAY BE

RELEVANT

Exclusion of Oral Admissions of the Content of Documents:

The law is that no oral evidence is admissible to prove the contents of a document. This is predicated on the
fact that documentary evidences speaks for themselves; hence, a document speaks for itself. As reaffirmed in
the case of: DANTATA JNR v. MOHAMMED & ANOR [2012] 14 NWLR pt. 1311 pg. 218 at 233. The same
principle regarding the exclusion of oral admission of the contents of document is provided in section 25 of the
Evidence Act, 2011.

SA: section 25 Evidence Act, 2011.

It provides that: “Oral admissions as to the contents of a document are not relevant, unless and until the
party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such
document under part V or unless the genuineness of a document produced is in question”.

Implication
This simply means that, any oral admission of the content of a document is irrelevant and therefore
inadmissible.

Relevancy of Oral Admission as to Contents of Documents:

However, as an exception to the general rule, oral admission as to the content of documents may become
relevant and admissible under the following situations according to the same section 25;

1. Where the party intending to use oral admission to prove the content of a document can show that he is
entitled to give secondary evidence of the content of such document, as provided under part V of the Act.

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2. Where the genuineness or truth of the document is in question

Some other instances/exceptions where oral admission as to the content of documents may become relevant
and admissible is provided in section 128(1)(a) of the Evidence Act, 2011. By virtue of the provision oral
admission becomes admissible for the purpose of proving any of the following matters; fraud, intimidation,
illegality etc.

RELEVANCY OF ADMISSIONS IN CIVIL CASES

The parties to civil proceeding reserve the right to make any admission made by either of them irrelevant;
whether it is made before or during the pendency of the suit. This can be done by expressly declaring such
admission in admissible. Section 26 and section 196 of the Evidence Act, 2011 makes provision for this right.

SA: section 26 Evidence Act, 2011.

It provides that: “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”.

Implication
What this section simply means is that, where the parties to a suit have expressly agreed that any admission
made by either of them in the course of negotiation or otherwise is not to be adduced in evidence, the court
acting upon such express agreement between the parties can exclude such admission from evidence. And in a
situation where no express agreement is made by the parties, the court in considering the peculiar
circumstances of the case, can reasonably infer that the parties agreed that evidence of such admission is not
to be adduced, thus, will declare such admission inadmissible.

This section would not however bind a legal practitioner acting in the interest of either of the parties, where he
is compelled to give evidence pursuant to section 192 of the Evidence Act dealing with professional
communication between a legal practitioner and his client. For example where there is illegality or fraud

SA: section 196 Evidence Act, 2011.

It provides that: “A statement marked “without prejudice” made in the course of negotiation for settlement
of a dispute out of court shall not be given in evidence in any civil proceeding in proof of the matters stated in
it”.

Implication

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Section 196 deals with where the admission has been scheduled into writing.

It simply implies that, in the instance of documentary evidence, where there is in the content of the document
any statement marked “without prejudice” as a result of negotiation for outside court settlement, such
statement cannot be adduce or admissible as evidence to prove the fact it relates to. As reasoned in the case
of;

FAWEHINMI v. N.B.A [1989] 2 NWLR pt. 105 pg. 558 SC.

Here, the appellant, a legal practitioner had some conflict with the NBA. In order to resolve the conflict, a
reconciliatory meeting was arranged between the plaintiff and the NBA by Sir. Adetokunbo Ademola. At
the meeting, the plaintiff recorded the proceedings on tape in which the defendants in this case made
some admission. The plaintiff then brought up an action against the NBA and sought to tender in
evidence the alleged admission made by the defendant at the reconciliatory meeting.
The Supreme Court inter alia that the appellant was not at liberty to tender in evidence the conversation
that ensued between the parties during negotiation, as same was made without prejudice.

CONFESSION
A confession is a specie of admission. Generally, it can be simply defined as a voluntary statement (admission)
made out at any time by a person charged with the commission of a crime and communicated to another,
stating or acknowledging that he committed the alleged crime.

Judicially, the court in the case between YAKUBU v. STATE [2012] 12 NWLR pt.131 pg.143-144, defined
confessional statement as one in which the person alleged to have made the statement admits unequivocally in
the statement that he committed the offence he is charged with.

Statutorily, confession has been defined by section 28 of the Evidence Act, 2011 as “A confession is an
admission made at any time by a person charged with a crime, stating or suggesting the inference that he
committed that crime”.

For a statement (admission) to amount to a confession, it is important that a crime had been committed first,
and it is the same crime that the accused is charged with, or intended to be charged with. A confessional
statement could be made at any time in so far as it is voluntarily made; hence, voluntariness of the statement
(admission) is a precondition for the validity of a confession.

A confession must be unequivocal, direct, positive and adverse to the interest of the maker as far as the
charges are concerned.

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Confessional statements are usually in writing, where it is not, it may be inadmissible in evidence unless it falls
within the general exceptions to hearsay rules. Where however, oral evidence is admissible, it carries no less
weight than a written one, this is the reasoning in the case of;

GOZIE OKEKE v. THE STATE [2000] FWLR pt.29 pg.2453 at 2466

At the Court of Appeal, Enugu State Division, the court stated that “a confession is usually in writing but it
can be made orally. An oral confession carries the same weight as a written confession depending on the
court’s assessment of the testimony of the witness who narrated the confession”.

It is also important that the confessional statement is made by the accused person in personam, a confession
made by a counsel on behalf of the accused person is of no weight. It is irregular and cannot be considered
valid. See the case of R v. PEPPLE [1949] 12 WACA 441.

Confession Distinguished from Admission

A confession is a specie of admission, and it is operative primarily in criminal matters and not civil matters.
Also, ‘admission’ in relation to criminal matters connotes the acceptance/concession of some relevant facts in
the alleged crime; ‘confession’ on the other hand, is customarily connotes a total and full admission of guilt of
the charged offence.

Judicial Confession Distinguished from Extra-Judicial Confession

A judicial confession or formal confession is one made in court by an accused before the judge or magistrate.
Instances of this are where an accused pleads guilty to a charge or where he admits his guilt in statement in a
preliminary enquiry. An extra-judicial confession or informal confession on the other hand is basically
confession made outside the court. It is generally a ‘statement’ made in writing to a police officer or other law
enforcement agent during investigation of a crime. Extra-judicial confession is basically what we shall be
examining under this topic.

In relation to extra-judicial confessions there are usually issues about the validity of confessional statements
obtained from accused persons by the Police and other law enforcement agencies, as majority are considered
to obtain confession from accused persons using threat, duress, etc, contrary to the provision of section 29. In
considering this issue, the Supreme Court intrinsically hit the nail at the head in the case of PATRICK OLUFEMI
KOLAWOLE OGEDENGBE v. THE STATE [2014] Ipelr-23065 (SC). Here, her Lordship, Hon. Mary Peter Odili JSC
took time to answer questions usually posed by counsels towards the validity and admissibility of extra-judicial
statement of accused persons thus:

1. Whether the voluntary confessional statement of an accused proves the best evidence to herald his
conviction

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Confession can be made at any time.

There is no fixed time for a confession must be made for it to be admissible in evidence. A confession can be
made at ‘any time’ after the commission of the alleged offence. Hence, a confession can be made before an
accused person is charged or after he has been charged with the offence. As reasoned in the case of:

SUNDAY ONUNGWA v. THE STATE [1976] 2 S.C. 169.

The appellant was convicted of murder. Before he was charged for the offence of murder, he already
made confession to the Police that he owned the bloodstained machete recovered near the scene of the
murder, adding at the same time that he had killed the deceased “as a result of the work of the devil”. It
appeared that, the trial court had convicted him on these confession. It was argued at the lower court
that these confessions being “extra-judicial” should have been rejected and that when the confessions
were made it had not been decided that the appellant was to be charged with any offence and that no
caution was administered to the appellant before they were made.
Overruling these submissions, the Supreme Court held that an admission made at any time by a person
charged with a crime suggesting the inference that he committed the offence is a relevant fact against
the maker and if it is made voluntarily, it is admissible in evidence.

RELEVANCY OF CONFESSION
When is a Confession Relevant? The answer to this question is provided in;

Section 29(1) Evidence Act, 2011.

It provides that: “In any proceeding, a confession made by a defendant 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”.

Implication
This simply answers the question that a confession made by an accused person is relevant in as much as it is
relevant to any matter in issue (fact in issue) in the proceedings and where the court does not exclude it as
being made involuntarily by the accused person.

It should be noted that, for a confessional statement to be relevant, whatever means or method it was
obtained from the accused person is immaterial so far it was voluntarily made by the accused person. As
reasoned in the case of;

IGBINOVIA v. STATE [1981] NSCC 63.

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Here, the appellant was charged with the murder of the deceased, a taxi driver. The appellant had asked
the deceased to accompany him so that they could buy petrol. The deceased also in need of petrol
followed the appellant. The appellant and three other men were later seen in the car with the deceased,
who told his sister he was going to buy fuel. The deceased never returned home. While in police custody,
a police officer was disguised as a dangerous criminal and was planted in the cell to extract information.
In his discussion with the appellant, the appellant confessed to have killed the deceased. The two lower
courts convicted the appellant based on the confessional statement. The appellant further appealed
contending that the confessional statement was not admissible due to how it was obtained.
The Supreme Court in dismissing the appeal held that the confessional statement was admissible since it
is relevant to the issue and was voluntarily made and cannot be rendered inadmissible based on how it
was obtained.

It is important to point out here that, it becomes immaterial to determine whether a confessional statement is
relevant to the issue contested once it is shown that the confession was involuntarily made by the accused
person, as it is the voluntariness of the statement that makes admissible and gives the court the impetus to act
on it as valid. As reasoned by PER NWODO JCA in the case of;

OSHO v. STATE [2012] 8 NWLR pt.1302 pg.243 at 295

“…I wish to restate the settled law that once a confession is voluntarily made, by an accused and the
confession is direct and unequivocally related to the offence for which he is charged, the confession is
sufficient to support the conviction without corroboration, once the court is satisfied with its truth. The
duty of the court is to satisfy herself of the truthfulness as a confession by examining it in the light of
other credible evidence before the court. This principle was also reiterated by Olagunwumiju JCA in the
case of OGUN v. STATE [2012] LPELR-15342 (CA)”.

The principle in the above dictum shows that a confessional statement by an accused person is sufficient
enough to establish conviction of the accused, even without the need of any other corroborative evidence.

VOLUNTARINESS OF CONFESSION
As stated earlier, voluntariness is a precondition for the admissibility of a confessional statement in evidence.
Only a voluntary confession is relevant and therefore admissible. The Evidence Act did not give any definition
of the word ‘voluntary’. But any confession obtained in any of the manners enumerated in 29(2)(a-b) is
involuntary and thus inadmissible. Therefore the section 29(2)(a-b) is a guide for determining what a voluntary
confession is.

SA: section 29(2)(a-b) Evidence Act, 2011. It provides that:

Subsection (2): “If , in any proceeding where the prosecution proposes to give in evidence a confession
made by a defendant, if it is represented to the court that the confession was or may have been obtained –

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Paragraph (a): by oppression of the person who made it; or

Paragraph (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 be made by him in such consequence,

The court shall not allow the confession to be given in evidence against him except in so far as the
prosecution proves to the court 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”.

Implication

This provisions simply means that, in any court proceeding where a confession made by the defendant is
proposed or intended to be adduced in evidence by the prosecution, such confession will be deemed
involuntary and thus inadmissible by the court if the prosecution represents (says/claims) that;

a. The confession was obtained upon oppression of the defendant

b. The confession was obtained as a result of anything said or done to the defendant which at such time was
likely to render the confession unreliable.

It then goes further to say that, it is immaterial whether the so obtained confession from the defendant under
the listed circumstances were even true, they will be inadmissible unless the prosecution is able to prove to the
court beyond reasonable doubt that the confession was not obtained involuntarily.

For the purpose of the term ‘oppression’ as used in the above subsection, subsection (5) gives a definition of
what oppression is.

SA: section 29(5) Evidence Act, 2011.

It provides that: “In this section “oppression” includes, torture, inhuman or degrading treatment, and the use
or threat of violence whether or not amount to torture”.

Implication
This simply means that, any confession made by a defendant under torture, inhuman or degrading treatment,
or by threat of violence irrespective of whether it amounts to torture is deemed to be oppression. Thus any
confession made by a defendant under any such situation is deemed to have been obtained involuntarily and
therefore inadmissible.

It is also noteworthy that, under the rules of construction of statutes, when the word “includes” is used, it
means that the item therein listed is not exhaustive and covers every other act or omission of similar class, so
long it is covered by the doctrines of ejusdem generis rule under adjectival common rules of interpretation.

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INVOLUNTARY CONFESSION: JUXTAPOSING BETWEEN THE NEW EVIDENCE ACT OF 2011 AND
THE OLD EVIDENCE ACT OF 2004
Here, we shall be examining what constitutes involuntary confession under the Evidence Act of 2004 and the
new one of 2011, and see what improvements have been made under the new Act.

Section 28 of the Old Evidence Act, 2004 provides that;

“A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the
confession appears to the court to have been caused by any inducement, threat or promise having reference
to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion
of the court, to give the accused person grounds which would appear to him reasonable for supporting that
by making it he would gain an advantage or avoid any evil of a temporal nature”.

Implication
Under this section of the Old Evidence Act of 2011 a confessional statement is held to be involuntarily obtained
if it is obtained by;

a. Inducement
b. Threat; or
c. Promise, in so far as, same is with reference to the charge against the accused person and proceed from a
person in authority.

Juxtaposing this provision of the old Act to the 2011 own, it is arguable, that the position of the law has not
changed, as the amendment in section 29(2)(a-b) of the new 2011 Evidence Act is indeed wide enough to cover
inducement, threat and promise as were the grounds for involuntary confession under the old Act.

The 2011 Evidence Act is wider in jurisdiction in the sense that, inducement is no longer limited to persons in
authority, it is sufficient that confession was obtained in consequence of anything said or done (irrespective of
the status of the person), which was likely in the circumstances existing at the time, to render unreliable any
confession the accused person may have made under section 29(2)(b). in addition where it was obtained by
oppression which includes, torture, inhuman or degrading treatment, and the use or threat of violence
whether or not amounting to torture. Thus if the case of R v. BODOM [19350 2 WACA 390, were to have been
decided under the new Act of 2011, the decision would have still remained the same. In that case, the accused
persons were tied and beaten by their fellow villagers and were told to confess by a man in authority in the
village. It was held that the confessions they made subsequently, even after they were cautioned by the police
were wrongly admitted, as they were involuntary.

Also, under the new Act by virtue of section 29(3) courts are empowered to raise the issue of whether a
confessional statement was voluntary suo motu. Contrariwise, it appears that in the absence of such provision ,
for example under the old Act, any judge who does that may be accused of descending into the arena of

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conflict. The section 29(3) of the new Evidence Act of 2011 provides that “In any proceeding where the
prosecution proposes to give in evidence a confession made by the 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”.

THE INCONSISTENCY RULE

The application of the inconsistency principle arises where the extra-judicial statement made by a witness
contradicts the one he makes during the trial. Hence, where there is an inconsistency in the extra-judicial
statement and the trial statement made by the witness.

The position of the law is that where an extra-judicial statement of a witness in a trial is inconsistent with the
one given at the trial, the statement of such witness should be treated as unreliable as the court cannot choose
between which to admit and which to reject.

As explained in the case of;

AFOLAHAN v. STATE [2012] 13 NWLR pt. 1316 pg.185

Where the court explained that, under what is generally known as inconsistency rule, if a witness had
made a previous written statement to the police in any material particular which was now inconsistent
with his evidence in court in that particular and no satisfactory explanation was offered for the
inconsistency, the duty of the court is to reject both the statements to the police and the evidence of the
witness in that material particular.

It must be noted that, this rule also applies to an accused person who stands as a witness. However, where the
statement in question contended to be inconsistent is a confessional statement of an accused person, the law
is that the inconsistency rule does not apply. In other words, the inconsistency rule does not apply where the
issue in the case bothers on the confessional statement of the accused. This is the exception to the
inconsistency rule.

RETRACTION OF CONFESSIONAL STATEMENTS

Retraction as it relates to confessional statements simply implies when a person makes a confessional
statement and decides to “take it back” i.e retract it. retraction is one of the grounds to object the admissibility
of a confessional statement, as it seems to violate the non-equivocation and un-ambiguity rule of admissibility
of confessional statements, as reasoned in the case of Egboghome v. State [1993] 7 NWLR pt.306 pg.383 S.C.

However, as a matter of practice, even though the accused person denies or retracts his statement, it does not
in itself render a confession inadmissible; it only plants seeds that may make the court jettison with it. hence,
the court usually admit it in evidence and then decide the weight to attach to it. As reasoned in the case of;

USEN v. STATE [2014] LPELR-23017 SC.

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The court stated that: it is firmly established that the fact that an accused person denied over making or
retracting statements made in the course of investigating the offence with which he was charged does
not render them inadmissible in evidence.

The Supreme Court per Onnoghen JSC in the case of Lliya Azabada v. The State [2012] stated that, where an
accused person later retracts his confession at trial, the practice has evolved whereby the trial court must look
for some evidence outside the confession which would make the confession probable, hence, the above rule is
the rule of practice. It is designed to determine which of the two versions of event relating to the commission
of the crime as given by the accused is likely to be correct. Whether the one version in the confessional
statement or the one presented by him at the trial. Where in examining the surrounding facts and
circumstances revealed in evidence by the witnesses, the court finds relevant fact and circumstances
supporting or verifying the facts confessed to by the accused in the retracted statement, it means the
confessional statement is reliable and can be so relied upon in convicting the accused person, irrespective of
his retraction.

The external evidence as used above are questions that the court is supposed to ask to determine whether or
not to rely on the retracted confession. This includes:

1. Is there is anything outside the confession to show that it is true?

2. Is it corroborated?
3. Are the relevant statements made in it of facts in issue as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the murder?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved?

Where a retracted confessional is subjected to this test/question and it passes, such statement may be
admitted and conviction can be rendered on it irrespective of the fact that it has been retracted, but where it
does not pass the test/question, then no conviction can be rightly based on it.

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