TRIAL PREPARATION AND

EVIDENCE I

15-08-2023
 CONTENT

1. Case Analysis/Case Theory/Trial Plan

2. Rules of evidence as to burden and standard
of proof,
3. Admissibility of documentary evidence and
necessary foundation to be laid for that
purpose; use of primary and secondary
evidence, opinion evidence and expert
witnesses.
 LEARNING OUTCOMES
• Explain and discuss the rules of evidence relating
to the burden and standard of proof and
admissibility of different types/forms of evidence.
• Prepare a trial plan, a case theory and identify
relevant evidence in a case;
• Explain different kinds of documents, the
conditions and foundations for the admissibility.
• Identify and discuss the ethical issues arising from
the lesson, for example, using forged or privileged
documents.
 CASE THEORY/ANALYSIS
• Stems from the duty of a Lawyer to be
dedicated and devoted to Client’s matter.
R.14 RPC 2007.
• A case theory is a succinct, coherent and
accurate story of what occurred. It should
demonstrate that a party is entitled to a relief
or defence.
• Legal theory + Factual theory = Case theory
• Legal theory is the argument why a case
should succeed in law in terms of the reliefs or
defence
• Factual theory is explanation of how course of
events could have happened.
• a good case theory should;
– Be based on strong facts & inferences not subject
to much dispute, if any.
– Consistent with incontestable facts
– Explains away unfavourable facts as possible
– Should not stretch imagination.
• Theory should be captured in a few lines as the
summary of the case intended to be made in
court.
• What is the rationale for Case analysis/ theory?
– Enables solicitor choose the most compelling focal
point for the case.
– Enables the solicitor to plan how to go about the
case in terms of determining & selecting evidence
– Helps determine the relative strength and
weaknesses of case.
– Gives direction to others solicitors who handle the
case. etc.
 TRIAL PLAN

• The trial plan is a graphic representation

of a case, setting out in detail how the
advocate intends to establish his case in
line with the theory of the case.
• It is a blue print for actualizing the theory
of the case of the advocate
 Elements of a Trial Plan
1. Cause of action,
2. Elements,
3. Witnesses for party,
4. Opponent’s witness(es),
5. Possible legal defence(s),
6. Law (Cases and Statutes),
7. Notes and follow up action.
 Evidential Issues
• Nature of trial in our legal system - Adversarial
Vs. Inquisitorial systems

• What is Evidence?
• Sources of the Law of Evidence
• Application of the Evidence Act 2011 s. 256.
 The Province of Evidence Law
1. What facts may be proved
(Facts in issue, relevant facts.)
2. What facts need not be proved
(Formal Admissions, Judicial Notice, Presumptions etc.)
3. What facts are excluded
(Opinion, similar facts, character, hearsay)
4. Means of Proof
(Oral, Documentary and Real Evidence)
5. Who is competent to give evidence
(Competence and compellability of witnesses)
6. Who bears the obligation to give evidence and the
standard of proof.
Common Terms used in Evidence Law
• Facts
• Proof
– Proved, disproved & not proved
• Burden of proof
• Relevance
• Admissibility
• Probative value
• Weight of evidence
 1. WHAT FACTS MAY BE PROVED
(s. 1 EA 2011)
1. FACTS IN ISSUE s.1
a) Main facts,
b) Subordinate facts in issue
2. FACTS RELEVANT FACTS IN ISSUE s. 1 EA 2011
a) Facts relevant pursuant to EA 2011 ss. 4-13 EA
– E.g. Transaction (Res Gestae), facts that are the
occasion, cause, effect, inconsistent, accidental
etc.
a) Facts relevant in special circumstance – s. 66, 35 &
36.EA.
b) Facts relevant on grounds of credibility
 2. WHAT FACTS NEED NO PROOF
1. JUDICIAL NOTICE S. 122
– Rationale a) efficiency, b) desirability of
consistency of Court decisions.
– Meaning - Osafile & Anor. V. Odi & Anor (1990)
All NLR 431
– Categories – See Osafile’s case.
i. Court MUST take Judicial Notice of items in s. 122(2)
EA 2011
ii. MAY take Notice of items in s. 122(3) – Discretionary
i.e. a. Notorious Facts and b. Customs.
 3. FORMAL ADMISSIONS

• S. 123 EA 2011
• Made in a formal setting, civil proceedings
with parties conscious of the goal to save cost.
• Formal admissions can be made in
a) Pleadings
b) Answers to Notice to Admit
c) Answer to Interrogatories
d) Through Counsel to parties
e) By the agreement of the parties.
 4. PRESUMPTIONS

s. 145 EA 2011.
• They are inferences or conclusions which a
court has a discretion or duty to draw upon
showing a fact or set of facts exist.
• Major determinant of the burden of proof.
• Classes of Presumptions
a) Presumptions of fact
b) Rebuttable Presumptions of law
c) Irrebuttable Presumptions of law
3. WHAT FACTS ARE EXCLUDED
i. Similar Facts Evidence.
S.1(a) enjoins courts to exclude evidence too
remote to the fact in issue.
ii. See policy behind exclusion of similar facts.
iii. Exceptions to general rule.
a) Accidental Acts. S1.2
b) Section 35 EA on Possession of land
c) Evidence of Scienter.
ii. Opinion – s. 67 EA
iii. Estoppel – s. 169 EA
iv. Official and Privileged Communication
iv. Character Evidence.
– Generally inadmissible In Civil Cases S. 78 EA
– Exceptions;
1. Where otherwise relevant. s. 78 EA
2. Where character goes to the determination of
damages. S. 79 EA
 4. RULE AGAINST HEARSAY
S. 125, 126 EA 2011, s.37, 38 ea
• Meaning.
• See Subramaniam v. Public Prosecutor of
Malaysia, See also Documentary hearsay
Armels Transport Ltd v. Madam Atinuke
Martins.
• Rationale for the rule.
• Exceptions to the rule against hear say.
i. Dying declaration
2. Evidence of statement of dead who cannot be
called as witness. S.39 EA
3. Affidavit evidence
4. Confessions
5. Informal admissions
6. Evidence in previous Court proceedings s.46
7. Evidence of Traditional history
8. Evidence admitted on principle of corporate
personality. Kate v Daewoo Coy Ltd.
 MEANS OF PROOF
1. ORAL EVIDENCE – s 125, 126 EA
– Meaning
– Means of ensuring reliability – Oath, cross
examination, demeanour of witnesses.
– Condition for admissibility of oral evidence – must
be direct.
– Means of Proof – examination in chief, cross-
examination and re-examination.
 2. REAL EVIDENCE

• Meaning – s. 127 EA 2011.

– Where oral testimony refers to a material then the
court may require production or inspection of the
material
– Immoveable materials – Visit to locus in quo. S.
127(2)
– Power, purpose discretionary nature – clear
physical ambiguities. Seismograph services Nig ltd
v. ogbeni (1976) All NLR 163.
– see Two Procedures.
 3. DOCUMENTARY EVIDENCE
• Meaning and admissibility of documentary
evidence s. 83 EA Torti v Ukpabi 1984 1
SCNLR 214.
• Criteria for admissibility of documents – 1.
Pleaded, 2. Relevant & in 3.admissible form.
Okonji v. Njonkama (1999) 12 SCNJ 259. See
also Okoye v Obiaso (2010) 8 NWLR (Pt.
1195) 145; Anuebunwa v AGF (2020)(SC)
• Classification – Public/Private s.102, 103 EA
 Proof of Content of Documents

• Proof is by Primary and Secondary evidence.

Ss. 85 EA
• Documents are proved primarily by primary
documents s. 88 EA
FORMS OF PRIMARY DOCUMENTS
1. The document itself s. 86 (1) EA
2. Documents executed in several parts, each
part is original of others. Nwobodo v. C.C.
Onoh 1984 1 S.C. 1 s. 86 (2) EA
3. Documents executed in counterparts s. 86
(3)EA
4. Documents made by uniform process s.86(4)
EA.
 SECONDARY EVIDENCE
(s.87 EA)
1. Certified Copies s. 87 (a) EA
2. Copies made from the original s. 87 (b) EA
3. Copies made from or compared with the
original s. 87 (c) EA
4. Counterparts of documents as against parties
who did not execute them. s. 87 (d) EA
5. Oral accounts of contents of documents
given by some who has seen it. s. 87 (e) EA
• Secondary evidence may be given where; s. 89
EA 2011.
1. Original in possession of adverse party. –
notice to produce must have been issued
s.91 EA. Notice not necessary where;
a) Document is a notice
b) From nature other party should know he should
produce
c) Adverse party obtained possession by fraud
d) Adverse party has original in court
e) Adverse party or agent admits loss.
2. When existence, condition or content of
original is admitted.
3. When original has been destroyed or lost.
4. Where the original is not easily moveable.
5. Where original is a public document or a
document of which a certified copy is
permitted by law.
6. Original consists of numerous accounts.
7. Entries in bankers book.
8. Seaman suing for wages in respect of articles.
What secondary evidence is admissible in
each case? S.90 EA
Computer Generated Evidence s.84
• Conditions for admissibility – by certificate or
oral show that document was:
1. Produced during period when computer was
regularly used to store and process info of the
kind.
2. The was supplied to the computer in the ordinary
course of business info of the kind.
3. Operated properly, if not did not affect outcome.
4. The info derived is from info supplied to computer
in the ordinary course of business. S. 84(2)
 Proof of Content of Public Document
• By CTC (Nb. Subsidiary means by gazette S. 106)
• Features of CTC; fee, certificate showing CTC,
subscribe name, date and title of officer and
seal. S. 104
• Admissibility of Photocopy of CTC. Williams v
Daily Times cf. Araka v Egbue, Ogboru v
Uduaghan, Magaji v nigerian army
• Nb document marked ‘admitted’ or ‘rejected’
See marked ‘ID’, documents in other language.
• On whether original of CTC is admissible. See
Araka v Egbue (2003) 17 NWLR pt 848 1 at 18,
Anatogu v. Iweka II (1995) 8 NWLR pt 415. 547
(only CTC admissible) cf. Kwara State Ministry
of Agric. v SGP Nig Ltd (1998) NWLR pt.575.
583, PDP v INEC (2014) 17 NWLR (pt. 1437)
525, Gambo Idi v State (2017) LPELR 42587
(SC)
• Is a Newspaper a Public Document ? Gani
Fawehinmi v IGP (2000) 7 NWLR (Pt. 665). 48
Court held it is a public document. Cf. Bello v I
& S Int’l Ltd (2005) All FWLR (pt. 256) 822.
 Proof of Execution s. 93EA
• Entails proof of;
– Signature seal or attestation
– Handwriting
– Authorship
– Form in which document ought to appear.
• Means of Proof
– Handwriting or signature expert. S.68
– Non Expert familiar with writing or signature s.72
– Witnesses present or prove identity of maker. Ss.
126(a), 94
– Court compares disputed with admitted sign. S.101(1)
– Direct person to write in court s. 101(2)
– Where document exist and this is a reply s. 94(2)
 PROPER CUSTODY & PRESUMPTION OF
GENUINESS OF PUBLIC DOCUMENTS
• S. 156 ‘…if they are in the place in which, and
under the care of the person with whom they
will naturally be… no custody is improper if
proved it has a legitimate origin.
• See s. 148 on documents the court shall
presume genuineness. Ogbunniyya v Obi
Okudo (1979) 1-9 SC 32. court held that
documents in paras a-d of s.148 need not be
in proper custody only para. e.
• Custody affects weight not admissibility Torti v
 Exclusion of Oral by Documentary
Evidence
• Parole Evidence rule s.128. Union Bank v.
Ozigi (1994) 3 NWLR pt. 333. 385.
• Exceptions
– Proof of fraud
– Proof of existence of separate oral agreement
where document is silent.
– Separate agreement is condition precedent.
– Oral agreement that rescinds or modifies
agreement
– Usage or custom
 Burden and Standard of Proof
• Burden of Proof – s.131, 132, 133
• Classification
– Legal burden , alteration to defendant - family land
– Adenle V Oyebade, Res Ipsa, probate – in
respect of Propounder of will
– Evidential burden.
– Standard of proof. S.134 Mogaji v Odofin (1978) 4
SC 91, see where there is 1. allegation of crime, 2.
special damages, 3. special interest.
Wrongful Admission/rejection of Evidence

• S. 251
• Duty of Counsel to object.
• Effect of failure to object.
– If absolutely inadmissible…
– If not…
• Consequence of failure to admit/reject may
lead to
– Reversal of issue appeal fails, or judgement appeal
succeeds, retrial