OPINION EVIDENCE

It is the duty of court to draw conclusions from facts proved before the court.
Therefore, as a general rule the opinion of a witness is generally irrelevant.
Accordingly, Section 67, Evidence Act, 2011 provides that, “the opinion of any
person as to the existence or non-existence of a fact in issue or relevant to
the fact in issue is inadmissible except as provided in Sections 68 to 76 of this
Act”.

Exceptions to the rule are enshrined in Sections 68-76, Evidence Act which
render opinion of experts and non-experts relevant with respect to Foreign
Law, handwriting or finger impressions, general custom or right, certain usages
and tenets, existence of the relationship of one person to another.

Many authors/writers perceive the stipulations of Section 67 that generally

excludes opinion evidence as a re-enactment of the common law principle of
the exclusion of opinion evidence. Thus, Prof Yemi Akinseye-George, SAN
opined that:

The word “opinion’’ refers to a belief not based on certainty or knowledge

but on what seems true or probable. It is a product of the exercise of
personal judgement, evaluation or estimation of some information that
seems to be true or probable. An opinion is different from a fact with which
it is often confused whereas a fact refers to a state of things as they are or as
they actually happened, opinion refers to how the giver of the opinion
thinks, believes or infers in regard to the facts in dispute, as distinguished
from his personal knowledge of the facts themselves. Thus, an opinion exists
in the thinking, imagination or understanding of the maker, while a fact
refers to reality, the true or actual state of things. As a general rule the law of
evidence does not allow a witness to give his opinion as to the existence or
non-existence of a fact in issue or a relevant fact.

WHO IS AN EXPERT
An expert is a person specially skilled in the area which he gives evidence. See
Section 68(2) in Azu v. State (1993) 7 SCNJ (pt. 1) 151 (pt. 299). (pt. 299)
(1993) 3 NWLR p. 303. The Apex Court held that to qualify as an expert, a
witness must be specially skilled in the field in which he is giving evidence. That
the question whether or not a witness can be regarded as an expert is a
question for the judge to decide, based on the legal evidence before him. That
the test must always be the knowledge and experience in the matter in

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question. See also A.G. Federation v. Abubakar (2007) ALL FWLR (pt. 375) 405
@ 555.

Note that, it is the duty of the court to determine who is an expert, which duty
is assisted in discharging by the expert witness, stating his qualification and
experience before leading evidence. See Azu v. The State (supra).

Further note that, skill is not necessarily by academic qualification or training

but also by experience. See Shell Petroleum Development Co. (Nig) Ltd v.
Tiebo (1996) 4 NWLR (pt. 445) p. 657. Although the court will normally accept
an uncontradicted expert evidence, it will not be bound to do so where such
opinion conflict with common sense, or where the expert fails to state the
basis of his opinion. See Idudhe v. Eseh (1996) 5 NWLR (pt. 451) p. 750.

EXPERT OPINION

(a) Opinion on Point of Science or Art

Opinion of experts specially skilled in the area of science or arts is

relevant where the court is to form an opinion on a point of science or
art. See section 68, Evidence Act. The term science and art are used
broadly and include determination of cause of death or the distance
from which the fatal missile was launched both of which have been held
to be within the competence of a medical doctor. See Oguonze v. the
State (1998) 5 NWLR (pt. 551) p. 521.

(b) Opinion As to foreign Law

Where the court is to form an opinion of Foreign Law, the opinion of

excepts acquainted with such foreign law is relevant. See Section 68,
Evidence Act. On the procedure to be followed or other matters to be
taken into consideration by the court with respect to foreign law. See
Section 69 which provides that:

Where there is a question as to foreign Law, the opinion of experts

who in their profession are acquainted with such law are admissible
evidence of it though such experts may produce to the court books
which they declare to be works of authority upon the foreign law in
question, which books the court, having received all necessary
explanations from the experts, may construe for itself.

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Note that an expert in foreign law is not required to be a person qualified to
practice in the courts of the foreign nation. However, the court may ascribe
probative value to the opinion of any person who has verse experience in the
practice of the foreign law in question compared to any person who is not so
qualified or has not practiced that Law.

In Melivani v. Chanhira Corp (1995) 6 NWLR (pt. 402) 438, the issue was
whether there was proof that the Plaintiff/Respondent a foreign company with
registered office laws of that country. The court held that where an expert
must give his qualification to show his special skill in the relevant field. But
where such an expert is considered as a professional businessman acquainted
with the law or field in question, his evidence may be admissible. The
Respondent’s witness in the instant case who gave evidence on the validity of
certificate of the Respondent’s incorporation did not give his qualification and
also did not give evidence that he is skilled in the law of Panama where the
certificate was issued. Therefore, the evidence so adduced by him goes to no
issue.

Further note that a person need not be a legal practitioner to be qualified as

an expert in foreign law, he only need to be acquainted with such law. See
Ajani v. Comptroller of Customs (1952) 14 WACA, 34.

Opinion As to Customary Law and Custom

By virtue of Section 70, Evidence Act, the opinions of traditional rulers, chiefs
or other persons having special knowledge of the customary law and custom
and any book or manuscript recognized as legal authority by people indigenous
to the locality in which such law or custom applies are relevant and admissible
whenever the court is to form an opinion on a question of customary law and
custom. Customary law is a matter of proof, with the exception of where such
custom has become so notorious that elevates same to be taken judicial notice
of. Thus, in Ojemen v. Momodu (2001) FWLR (pt. 90) 1406, the Supreme Court
held that native law and custom not judicially noticed must be proved by
evidence of witnesses belonging to the community to show that, that
community in the particular area consider the alleged customary law as having
binding effect on members of the community.

Note that books and manuscripts recognized by natives as legal authority also
relevant for this purpose. See Ibrahim v. Barde (1996) 9 NWLR (pt. 474) 513,

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SC, the phrase any book or manuscript recognized by natives as a legal
authority was an issue for determination. Wherein the Supreme Court
recognized a book entitled, ‘Abuja Chronicle’ which was generally considered
by the Suleja people as an authority on their native law and custom as falling
under that phrase.
Similarly, in Onwuchekwa v. Onwechekwa (1991) 5 NWLR (pt. 194) 739 @
751, the Court of Appeal, per Tobi JCA (as he then was) held that, ‘The Law
recognizes and section 58 of the Evidence Act says clearly that in deciding
questions of customary law, any book or manuscript recognized by natives as a
legal authority is relevant… While it is not easy for the Court to determine
when a book or manuscript is said to be recognized by the natives, the burden
is essentially on the party alleging the particular customary law contained in
the book or manuscript. It does not appear from the totality of the section 58
requirement that the judge can suo motu, make reference to an existing book
or manuscript and make use of it. Section 58 provides four levels of evidence.
They are (a) opinions of native chiefs, (b) opinion of other persons having
special knowledge of native law and custom, (c) any book, and (d) any
manuscript. I have separated book from manuscript because they do not
mean the same thing. Since the opinions of native chiefs and other persons
having special knowledge of native law and custom have come from two
categories of persons as human beings, the section, in my view also expects
the book or manuscripts to be produced by a witness. I say this because it is an
evidence relating to the particular customary law which is recognized as a fact.

Opinion As to Handwriting
Opinion of experts as well as non-experts is relevant where the court is to form
an opinion as to handwriting. Expert opinion in this case is covered by Section
68, Evidence Act and would be evidence of persons specially skilled in identity
of handwriting. Thus, in Ize-Iyamu v. Alonge (2001) ALL FWLR (pt. 371) 1570,
the court held that the opinions of handwriting experts are admissible to
decipher words beneath obliterations, erasures or alterations although it is for
the court to determine what the words are.

Consequently, expert opinion concerning handwriting is germane when there

is a conflict relating to the authority of a document or disputes as to
signatures.

On the other hand non-expert opinion with respect to handwriting is covered

by Section 72 and could be given by a person acquainted with the handwriting.
Under Section 72(2) a person is said to be acquainted with the handwriting of

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another person when he has seen that person write, or when he has received
documents purporting to be written by that person in answer to documents
written by himself or under his authority and addressed to that person, or
when in the ordinary course of business, document purporting to be written by
that person have been habitually submitted to him.

The court may also extract from a person present in court any writing or finger
impression for the purpose of such comparison provided that such extracted
finger impression must be destroyed at the end of proceedings.

Note that where the document is made by an illiterate, it must also satisfy the
provisions of the Illiterate Protection Law requiring jurat for it to be admissible.
Otherwise the document cannot be admitted against the illiterate. See
Barclays Bank v. Hassan (1961) ALL NLR, 836.

Opinion as to Identification
This is a form of opinion evidence and may be judicial or extra judicial. Judicial
identification is done in open court when the witness identifies the culprit and
extra judicial when it is done outside court usually by process of identification
parade. Identification parade is necessary only when the identity of the
offender is in doubt, otherwise it is a superfluous formality. See Imo v. The
State (2001) 1 NWLR (pt. 694) 314.

According to Aguda, the identification through a photograph of an accused

who is absent is a matter of opinion which is also admissible. Thus, in Sunday
Omega v. The State (1965) NMLR 58, it was held that unless the photographs
were shown to the witness in order to enable him identify the suspects at a
subsequent identification parade the property of the identification parade
cannot be impugned.