UNIVERSITY OF IBADAN, IBADAN

FACULTY OF LAW
DEPARTMENT OF PUBLIC LAW

COURSE TITLE: LPU 4101: LAW OF EVIDENCE I (1ST SEMESTER LECTURE NOTE)
Prepared by: Dr. S. Akinlolu Fagbemi (Reader), FIPMD, AISDS, AICMC

Synopsis/Course Contents

1. General Introduction: Definitions of Terms, Preliminary Issues, Scope of law of

Evidence
And Rules of Evidence - Dr. S. A. Fagbemi (Reader)
2. History and Sources of Law of Evidence: Relationship between the Nigerian Law of
Evidence and Common Law Rules of Evidence - Dr. S. A. Fagbemi (Reader)
3.

4. Facts in Issue and Relevant Facts, Admissibility and Weight of Evidence- Sections 6-
18 Evidence Act, (2004), Sections 4-11 Evidence Act, (2011) - (Relevancy and
Admissibility) – Mr. Opeyemi Gbadegesin
5. Similar Facts Evidence – Mr. Opeyemi Gbadegesin
6. Burden and Standard of Proof – Dr. S. A. Fagbemi (Reader)
7. The Doctrine of Res Gestae – Mr. Opeyemi Gbadegesin
8. Admission and Confessions – Sections 19-32 Evidence Act, (2004), Sections 20-32
Evidence Act, (2011) – Professor Yemisi Bamgbose SAN
9. Presumptions – Dr. S. A. Fagbemi (Reader)

Objectives of the Course

To introduce student to the Nigerian law of evidence and its sources
To expose student to various classification of evidence and proof of facts
To introduce students to documentary evidence and its uses in legal proceedings
To discuss the importance of admission and confession in legal proceedings
To discuss who bears the burden of proof and the importance of presumptions in legal
proceedings
To examine the relevancy and admissibility of evidence and weight of evidence
To discuss the relevance of opinion evidence in legal proceedings and other exclusionary rules
To consider the rules of estoppel in legal proceedings
To expose students to corroborative evidence
To distinguish between competence and compellability and official and privilege communication
To highlight the admissibility of character evidence during court proceedings
To expose student to modes and rules for the examination of witnesses in court
To arouse student consciousness on the tasks of lawyer and judges in the settling of disputes

Recommended Textbooks/Reading Materials

1. Cases and Materials on Nigerian Law of Evidence by Yemi Osibanjo (SAN)
2. Law and Practice Relating to Evidence in Nigeria by Akinola Aguda
3. Modern Nigerian Law of Evidence by Fidelis Nwadialo (SAN)
4. Law and Practice of Evidence in Nigeria by Afe Babalola (SAN)
5. Law of Evidence in Nigeria by Akinola Aguda
6. Nigerian Law of Evidence by C. Eche Adah
7. Principles of Evidence by Schwikkard P. J, Van Der Merwe, S. E, Collier D. W, De Vos,
W. L, St Q Skeen, A and Van Der Berg, E.
8. Evidence Act Cap E14 Laws of the Federation of Nigeria, 2004
9. Evidence Act 2011

TOPIC 1: GENERAL INTRODUCTION

DEFINITIONS OF JUDICIAL EVIDENCE

It should be noted from the onset that there is no statutory definition for the word “Evidence”,
notwithstanding this, the definition of the word can be derived from some other ways by which it
is being applied in the day to day’s activities as well as from the perspectives of various authors.

According to Phipson ‘evidence’ means ‘the testimony, whether oral, documentary or real which
may be legally received in order to prove or disprove some facts in dispute’.

Professor Cross: evidence is the testimony, hearsay, documents, things and facts, which a court
will accept as evidence of the fact in issue in given cases.

Professor Nokes defines judicial evidence as the evidence receives by the court in prove or
disprove of fact the existence of which came before them.

From the above definitions, we can suggest the following working definitions: Evidence is the
mean by which facts in issues are established before a judicial tribunal/court, such evidence
could be oral, documentary or real. In the case of Arum v Nwobodo (2013) 12 SCM (Pt. 3)
205, evidence is defined as the means employed for the purpose of proving a disputed fact. See
also the case of Tukur v UBA. (2012) 10 SCM 139. It was held that ‘evidence is the means from
which an inference can logically be drawn as to the existence of a fact.

Meaning of Evidence

Evidence as a word can be understood from the ordinary English usage. On the other hand,
according to Eche Ada, evidence can further be understood from both literal perspective and
technical perspective. In the literal sense, evidence is something which substantiates the
existence of certain facts while the technical usage has been ascribed to definition by
Blackstone which is “that which demonstrates, makes clear, or ascertains the truth of the
very fact or point in issue”.

Evidence in my own opinion can be said to be a declaration or proclamation made in order to

establish or prove the existence of certain facts or incidents. Oxford Advanced Learner’s
Dictionary defines “Evidence” to mean information that gives a strong reason for believing
something or prove something. Evidence is the foundation of proof. It is the acceptance of the
statements or things presented by a person testifying in establishing the existence of certain facts
by the Court that occasions a proven fact.
Furthermore, the word “evidence” has been subject of definitions and descriptions by several
authors and for a proper understanding, some of these are examined hereunder. Cross defines
evidence in relation to evidence of fact. He says; “the evidence of a fact is that which tends to
prove it- Something which may satisfy an inquirer of the fact’s existence”. On his own part,
Phipson sees evidence as that which may be placed before the court in order that it may decide
issues of fact. Taylor stipulates that Evidence includes the following:
1. All the classes of evidence – which includes oral, documentary or real evidence
2. Facts proved
3. Facts disproved.

Aguda on his part suggests that evidence is the means by which facts are proved but
excluding inferences and arguments. Taylor further defines evidence as: “All legal means,
exclusive of mere argument, which tend to prove or disprove any matter of fact; the truth of
which is submitted to judicial investigation” In his own definition of evidence, McKelvey states:
“Evidence is any matter of fact from which an inference may be drawn as to another matter of
fact; the former fact is called the evidential fact; the latter, the ultimate, main or principal”. Best,
also defines evidence as “any matter of fact, the effect, tendency or design of which is, to
produce in the mind a persuasion, affirmative or dis-affirmative, of the existence, of some other
matter of facts”.

Worthy of note on the concept of “evidence” is what has been expressed by Best and Nokes who
presented the definition from the perspective of a legal system. Best distinguished judicial
evidence as “Evidence received by courts of justice in proof or disproof of facts, the existence of
which comes in question before them. Nokes defined evidence as “Judicial evidence consisting
of facts which are legally admissible, and the legal means of attempting to prove such facts”.

In the line of thought of Hon. Justice P.A. Onamade, evidence is the means by which any matter
of fact, the truth of which is submitted to investigation may be established or disproved. It is the
means whereby apart from the argument and inference, the court is informed as to the issue of
facts as ascertained by the pleading, that is, the testimony, whether oral, documentary or real,
which may be legally received in order to prove or disprove some facts in dispute.

It is also noteworthy that the definition of the concept “evidence” has been judicially ascertained
by the Supreme Court in the case of Akintola and Another v. Solano [1986] 4 S.C. 141 at 184.
In that case, Oputa JSC stated as follows:

If a thing is self-evident, it does not require evidence. What therefore is evidence? Simply put, it
is the means by which any matter of fact the truth of which is submitted to investigation may be
established or disproved. Evidence is therefore necessary to prove or disprove an issue of fact.

Premised on the foregoing, evidence is the means by which fact in issue which are material
evidence such as oral testimony, documentary evidence or real evidence are established by a
judicial tribunal.
Evidence can therefore be summed up to be something or that which is required to prove or
disprove an issue of fact.

Definition of Law of evidence

In the opinion of Cross and Wilkins, the plaintiff or the prosecution is saddled with the
responsibility of proving a great deal of evidence in establishing the facts of their cases and it is
therefore the law of evidence which tells them how they may go about it. Thus, the procedures
set out by which facts are proved are regarded as the law of evidence.

The Law of Evidence relates to the following items:

i. Proof of facts before the court
ii. Who may prove
iii. How facts may be proved, and
iv. What facts may not be proved in a court of law.

Law of Evidence according to Stephen is “that part of the Law of Procedure which, with a view
to ascertain individual rights and liabilities in particular cases, must establish the following:

(1) What facts may, and what may not be proved in such cases?
(2) What sort of evidence must be given of a fact, which may be proved?
(3) By whom and in what manner the evidence must be produced by which any fact is to be
proved?

He states further that this part of the Law of Procedure can be found in judicial decisions, statute
Law and Text- Books, among others.

In summary, the law of evidence can be said to involve the application of material evidence for
proving and establishing facts upon which the claims, charges or defences of parties to a legal
action are based before the law court.

PRELIMNARY ISSUES IN THE LAW OF EVIDENCE

What is the use of evidence in legal proceedings?

In an adversarial system of jurisprudence, as against inquisitorial system of justice, evidence plays

important role in legal proceedings. Judges deliver judgment based on the quality of the evidence
adduced by the parties to dispute. Over the years, it has been observed that a very minute error in
the course of giving evidence during a trial can go a long way in turning the table the other way
round, most especially negatively in a case that is otherwise on a sound footing.

The importance of evidence date back to the first trial of Adam and Eve in the Garden of Eden.
Before God pronounced His judgment, Adam and Eve were given the opportunity to give
evidence in defence of their case 1 (fair hearing). Failure of Adam and Eve to adduce credible and
convincing evidence on the balance of probability as against the extant order of God led to the fall
of the first family. Up till today, the pattern of taking evidence in courts’ proceedings the world
over is tailored after the above precedent.

Since evidence is germane in the proof of cases before the courts of law, success at trial is
therefore in the hands of parties and their counsel. The reason being that judge can only penetrate
the human conscience by the quality of the evidence adduced by parties and their counsel.
1
Genesis, Chapter 3, John Maxwell and Tim Elmore, The Maxwell Leadership Bible,(2nded, NKJV, United
States of American: Thomas Nelson Inc. 2007) 6-7.
What is the role of counsel in legal proceedings?

A legal practitioner must be articulate, skillful in advocacy and abreast of facts in issue to win
cases (i.e. good in evidence law). For instance, proper foundation of background of the case must
be laid before he presents his evidence. He must have knowledge of substantive and adjectival
law.

Apart from litigants, two other prominent figures in adjudicatory processes are the judge and
lawyer. The two personalities are instrumental to the administration of justice. According to
Amina Augie,2 ‘they are bound together in some form of symbiotic existence’. According to
Black’s Law Dictionary,3judge is a public officer appointed or elected to hear and decide legal
matters in court’. The Encarta Dictionary4 defines ‘judge’ as ‘a high-ranking court officer,
formerly a lawyer, who supervises court trials, instructs juries and pronounces sentence’. Within
the above contexts, judge is the first person in legal proceedings as a presiding officer. His role is
very essential in legal proceedings.

Legal practitioners are next to judge in adversarial system of justice. From the moment a lawyer is
admitted into the Nigerian Bar and his name enrolled in the Roll of Legal Practitioners at the
Supreme Court, he has a right of audience in all superior courts of record including the Supreme
Court of Nigeria. A Lawyer is an officer of the court and ministers in the temple of justice;
accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or
adversely affect the administration of justice.5

A lawyer must be dedicated to his client’s case and pursue same with vigour and conviction. 6
Ultimately, there is need for legal practitioners to conduct their clients’ cases competently within
the stipulations of the law and the Rules of Professional Conduct for Legal Practitioners. 7

THE SCOPE OF LAW OF EVIDENCE

Substantive Law: This defined the rights, duties and liability of parties to the transaction in
issue e.g. law of torts, contract and criminal law etc.

i. Adjectival Law: it governs the machinery by which substantive law is applied in practice. It
regulates the conduct of litigation and establishes the facts on which rights, duties and
liabilities are founded. Adjectival law comprises of procedure and evidence.

2
Hon. Justice Amina A. Augie JCA, ‘The Bar and the Bench: Twin Pillars Upholding the Rule of Law in Nigeria’
(Thursday, 1st June, 2006). After Dinner Speech at the Nigeria Bar Association (NBA) Ibadan Branch held in
Ibadan 140, 181.
3
Bryant A. Garner, Black’s Law Dictionary, (8th ed. United States of America: West Publishing Company, 2004)
857.
4
Microsoft Encarta Premium, 2009.
5
In the case of Nkuma v Odili[2006] 2-3 SC. 18. The Supreme Court per Oguntade JSC held that: “It is necessary to
say here that counsel appearing in matters before the court should see themselves first and foremost as officers of
the court and refrain from imposing on the courts the tedium of sending it on a wild goose chase”.
6
Rules of Professional Conduct for Legal Practitioners, 2007 s 14 (1).
7
Ibid sections 15 and 16.
Procedure deals with the methods of initiating proceedings and how they are conducted and these
are to be found in the various rules of courts for civil cases and in the CPA or the CPC for
criminal trials- the Southern and Northern State respectively.

Generally, actions are commenced in accordance with the rules of court and applicable law. The
modes of commencement of an action include claim/plaint, complaints, writ of summons,
originating summons, originating motion/Application and petition.8

CLAIM/PLAINT: Claims are used in the commencement of action in the Magistrate court in
accordance with the provisions of the law 9 while plaints are used in commencing an action in the
District Court10. A claimant must comply substantially with the Civil Form 1 of the Appendix to
the rule supported by particulars of claims, which is to be delivered to the Registrar of the Court. 11
Where a claim fails to disclose a cause of action prima facie, such an action shall be struck
out.12

COMPLAINT: Complaint is used in commencing an action in the National Industrial High

Court. The rules of the court make provision for action to be commenced by complaint, which
must be filed and sealed13. Documents required to accompany the complaint include a statement
of facts establishing the cause of action; a list of witnesses to be called; a written statements on
oath of all witnesses listed to be called by the Claimant; and a list and copies of documents and
other exhibits to be tendered at the trial. 14 However, in proceedings by way of appeal from
decisions of arbitral tribunal, board of inquiry, decision of the Registrar of Trade Unions or any
other authority in respect of matters within the jurisdiction of the Court, the complaint shall be
accompanied by the Record of Appeal.15

WRIT OF SUMMONS: In most jurisdictions across Nigeria, the writ of summons is the most
common mode of commencement of action as every proceeding except where the rules
provides otherwise is to be commenced by writ of summons. 16 A writ of summons is used in
circumstance where the matter is contentious or where the parties are unsure of proper
method of originating process to use.17 In accordance with the concept of front-loading 18, all
civil actions commenced by writ of summons shall be accompanied by:
(a) Statement of Claim;
(b) List of witnesses to be called at the trial;
(c) Written statement on oath of the witnesses except witnesses subpoenaed;
(d) Copies of every document to be relied on at the trial;
(e) Pre-action protocol form 0119.

8
See order 3, rules 2, 4, 5 (1) and 6 of the National Industrial Court of Nigeria Rules 2017.
9
See Order 1 of the Magistrate Court (Civil Procedure) Rules Lagos, 2009.
10
Order 2 Rule 1 of District Court Rules, Cap. 495 LFN (Abuja) 1990.
11
Order 1 Rule 2 of the Magistrate Court (Civil Procedure) Rules Lagos, 2009.
12
Order 1 Rule 5(1)
13
Order 3 Rule 1 of the National Industrial Court Rules 2017.
14
See Rule 9.
15
See Rule 16(3).
16
See Nwadialo, F. Civil Procedure in Nigeria. (Lagos: MIJ Professional Publishers Ltd., 1997) 617.
17
See Doherty v. Doherty (1986) NMLR 241 and NBN Ltd v. Alakija [1978] ANLR 231.
18
The concept of front-loading is an innovation, which aims at quick dispensation of justice in civil litigation. See
note 2 at 147.
19
See Order 3 Rule 2(1) of the Lagos State High Court (Civil Procedure) Rules 2012. Under the Oyo State High
Court (Civil Procedure) Rules 2010. Note that it is only in Lagos State that pre action protocol form is in used as
part of requirement of front-loading.
In Abuja, a certificate of pre-action counselling signed by counsel and litigant shall be filed
along with the writ where proceedings are initiated by counsel, showing that the parties have been
appropriately advised as to the relative strength or weakness of their respective cases. The counsel
shall be personally liable to pay the costs of the proceedings where it turns out to be
frivolous.20Where a litigant failed to comply with the concept of front-loading, such writ will
not be accepted for filling at the registry 21. However, where it has been accepted, the court has
been urged to consider it as a mere irregularity, which can be regularized by compliance 22.

ORIGINATING SUMMON: Originating summon as a mode of commencement may be adopted

where the suit is non-contentious in nature. An action can therefore be commenced by originating
summons where the sole or principal question in issue is or is likely to be one of construction
of a written law or any instrument made under any written law, or of any deed, will, contract
or other document or some other question of law; or there is unlikely to be any substantial
dispute of fact23.

Therefore, originating summons will be inappropriate in circumstance where facts are

substantially in dispute or where the proceeding is hostile 24. An Originating summons must be
supported with affidavit evidence or counter- affidavit where required. In addition, the summons
must be accompanied by all exhibits to be relied upon; a written address in support of the
application; and pre-action protocol form 01(applicable in Lagos) 25. Where a litigant commenced
an action by an originating summons instead of writ of summons, the court will not strike out the
matter but order the filing of pleadings by the parties26.

ORIGINATING MOTION/APPLICATION: An originating motion/application as a mode of

commencement of an action can only be used where a law or statute so stipulates 27. It is
commonly adopted in matters involving judicial review28. It can also be adopted where a statute
provides that a proceeding be commenced by way of application but makes no specific provision
as regards the procedure to be used.29

PETITION: A petition as a mode of commencement just like origination motion, is to be adopted

only where specified by a statute or rules of court. 30 Actions that may be commenced by way of
petition include winding-up proceedings,31 dissolution of marriage or divorce proceedings 32 and

20
Under Order 4 Rule 17 (Abuja)
21
Order 3 Rule 2(2) of the Lagos State High Court (Civil Procedure) Rules 2012.
22
Olaniyan v. Oyewole (2008) 5 NWLR (Pt. 1079) 114.
23
Order 3 Rules 5 & 6 of the Lagos State High Court (Civil Procedure) Rules 2012. Same is applicable in Oyo and
Enugu state.
24
See Doherty v. Doherty (1986) NMLR 241 and Dalhatu v. A.G. Katsina State (2008) FWLR (Pt. 405) 1651 at
1676-1671.
25
Order 3 Rule 8(1) of the Lagos State High Court (Civil Procedure) Rules 2012.
26
See Adeyelu II v. Ajagungbade III (2007) 14 NWLR (Pt. 1051) 1 at 16 and Emezi v. Osuagwu (2005) 12 NWLR
(Pt. 939) 340.
27
See Order 2 Rule 1 of the Fundamental Human Rights (Enforcement Procedure) Rules 1979.
28
See Ojukwu, E. and Ojukwu, C.N. Introduction to Civil Procedure. (3rd Ed. Abuja: Helen-Robberts Ltd., 2009)
127.
29
See the cases of Akunia v. A.G. Anambra State (1977) SC 161 and KASOP v. Kofa Trading & Co., (1996) 2 SCNJ
325 at 334.
30
Order 3 Rule 1 (Lagos); Order 1 Rule 2(3) (Abuja)
31
Section 410(1) of the Companies and Allied Matters Act, 1990.
32
Section 54(1) of the Matrimonial Causes Act, 1970.
election petition.33 Generally, a charge sheet or information is used to commence criminal
proceeding.

RULES OF EVIDENCE

The law of evidence governs the proof of facts in law court and forms part of the procedural
machinery that makes substantive law effective. The basic rules of evidence are to assist court in
the determination of four principal problems namely:

i. UPON WHOM REST THE BURDEN OF PROOF?

The burden of proof rest on the person who asserts the existence of such things. In the case of
Nigerian Army v. Yakubu (2013) 5 SCM 209, it was held that a party who asserts must prove.
For instance, prosecution in criminal case and plaintiff in civil case. Note that under this general
principle of law, it is settled law that the proof of particular fact rest on the person who wants the
court to believe in the existence of such fact. For example, the defence of insanity, alibi,
provocation, self defence and intoxication etc. in criminal case and estoppel, contributory
negligence or statute of limitation in civil case.

ii. WHAT FACT MAY BE PROVED?

Generally, a party must establish or proof every material fact upon which he intends to rely and
he must adduce sufficient evidence in support thereof e.g. proof of alleged offence by the
prosecution and proof of fact in issue and fact related to fact in issue in civil case.

Exceptions to the above general rule in civil case

a. Facts of which Court must take Judicial Notice need not be proved – see section 122
of
Evidence Act, 2011

This includes legal and constitutional matters: Any court in Nigeria must take judicial notice of
laws or enactments and subsidiary legislations made there under having the force of law now or
previously in force in any part of Nigeria. The rules of practice and procedure in her majesty
High Court of justice in England and in any High Court or courts of appeal in Nigeria must also
be judicially noticed as well as all general customs, rules and principles of the common law and
equity.34

Similarly, the court must take judicial notice of rules relating to parliamentary proceedings in both
the National Assembly and the Legislative Houses of the States; the name of the person who is
the head of state or president or prime minister in Nigeria; the seals of the Nigeria; the existence
of title and national flag of every state recognised by Nigeria; the divisions of the Federation of
Nigeria into states and provinces; the geographical divisions of the world, the names of the judged
of the superior court both original and appellate; the names of legal practitioner entitled to appear
before the court. See the case of Faroly Establishment v NNPC35.

33
Section 133(1) of the Electoral Act, 2010(as amended).
34
See sections 17 of the Evidence Act, 2011.
35
(2011) 5 NWLR (Pt. 1241 457 CA1
In the case of A.G Federation v A. G, Abia State, 36 it was held that once it is possible to prove the
boundary of a state by relying on any law that defines such boundary, it is not necessary for the
plaintiff to call witness or adduce affidavit evidence to prove the avernment in the statement of
claim if he intends to rely on the interpretation of law only.

b. Fact admitted need not be proved:

Admissions is a statement, oral or documentary, or conduct which suggests any inference as to
any fact in issue or relevant fact, and which is made by any of the persons, and in circumstances,
mentioned in sections 20 to 27 of Evidence Act of 2011.37

Admission is either formal or informal. A formal admission is usually contained in the pleading,
and fact admitted in a pleading may be taken as established without proof thereof. Such
admissions are made by a party to civil proceedings so as to relief the other party of the necessity
of proving matter already admitted. In Chief Okparaeke Ndiakene v. Egbonu & Ors38 where both
parties agreed as to the ownership of piece of land. The counsel to the appellant argued that the
agreement was res judicata in favour of the appellant by virtue of two judgments of the native
court. The acting resident of the province gave the order that the case be heard de novo by the
provincial court. On appeal, it was held that the learned trial judge was wrong to go into the
identity of the said land which have been agreed upon by the parties. It further held that since
one of the objects of pleading is to shorten proceedings by ascertaining what facts are agreed so
that evidence need not be led to prove them, the court should have accepted this agreed fact as
established without proof. Formal admission applies to civil cases only, while informal admission
applies to both criminal and civil cases. See the following cases Ajeigbe v Odedina (1985) 1
NWLR (Pt. 72) 584 SC; Alli v Alesinloye (2000) FWLR (Pt. 15) 2613 SC and Crown Floor Mills
v Olokun (2008) 4 NWLR (Pt. 1077) 254.

Note that admissions are not conclusive proof of the matters admitted but they may operate as
estoppel. See section 27 of Evidence Act 2011. See also sections 169 to 174 of Evidence Act
2011.

c. Facts of common knowledge need not be proved

By section 124 of Evidence Act 2011 these are notorious facts and it is trite law that courts may
take judicial notice of matters coming within the sphere of their everyday knowledge, experience
and within the locality in which the proceeding is being held or generally. The court is expected
to have knowledge of the common affairs of life which man of ordinary intelligence usually
possess. Such fact must be so common, so well-known and of universal application as to exclude
proof of them. For example, the fact that a University is an institution of higher learning or the
usual period of gestation. In the case of R. v. Luffe (1807) 8 (East) 193, the proof of non-access
of a husband to his wife during the time within which a child of which she is delivered must in
the ordinary course of nature, have been conceived, is sufficient to establish the fact he was not
the child father. Others are: Nigeria coins and currency, that a newspaper was a national daily in
Nigeria having readers outside the Country. See the case of Rotimi Williams v. West African
Pilot (1961) All NLR 866. In the case of Mumu v Agor (1993) 8 NWLR (Pt. 313) 573 CA, it was

36
(2002) FWLR (Pt. 102) 1 SC
37
See further section 20 EA, see also the case of Military Governor of Ondo State v Kolawole(2000) FWLR (Pt. 3)
395 CA.
38
(1941) 7 WACA 53
held that there is nothing wrong in a court of law taking judicial notice of happening in the
environment in which the court is situated.

iii. WHAT FACT OUGHT TO BE EXCLUDED FROM THE COURT

COGNISANCE?
Generally, prove of fact which are not in issue and fact which are not related to the fact in issue
are excluded and therefore courts are not expected to take cognisance of them. For example,
evidence of bad character in criminal case or evidence of previous good character in civil case.
See sections 78 to 82 of Evidence Act 2011.

iv. WHAT METHODS OF PROOF ARE ACCEPTED?

Generally, under the Nigerian legal system the following methods (means) of proving facts are
recognised:
a. Prove by real evidence (e.g. production of object in court or visit to locus in quo). See
section 127 of Evidence Act 2011
b. Prove by oral evidence (which must be direct). See sections 125-126 of Evidence Act 2011
c. Prove by documentary evidence (tendered in court during proceedings). See sections 83-91
and 128-130 of Evidence Act 2011.

1. What do you understand by Judicial Evidence?

2. Make a list of and discuss the items of judicial evidence.
3. What are the rules of evidence?

TOPIC 2. HISTORY AND SOURCES OF NIGERIAN LAW OF EVIDENCE

A. Historical Overview of Law of Evidence in Nigeria

Traditionally, before the advent of the British around 1861, the natives had their own system for
the administration of justice in different societies comprising Nigeria. Although, the system was
not as sophisticated as the British system, however, they were designed to ensure the stability
of society and maintenance of social equilibrium among the citizens. The main objective of
various customary rule of evidence was to promote communal welfare by reconciling divergence
interests of people. Again, the administration of justice in traditional society was not conducted in
the courts in the British context with all its paraphernalia of a formally designed building,
punctuated with an aura of legalism and juristic style. On the contrary, there were rudimentary,
and to a large extent, transient arrangements in specific places, particularly the family house, if it
was family feud, or in the village square or community hall if the litigation involved a wider
spectrum of the community.

The above was the position before the arrival of British colonization in 1861. On arrival, the
British initially reacted positively to the administration of justice under customary law. They
recognised the traditional system outside the framework of English law and jurisprudence. Hence,
the Traditional Rulers, Chiefs, Elders and Age Grades continued to preside over courts in the
Southern part of Nigeria. In the Northern areas of the country there were Islamic religious courts
presided over by persons learned in Islamic law. Similarly, the rules of evidence in the
customary courts were the applicable customary rules of evidence in the Southern part,
whilst the rules of evidence in the Islamic courts were Islamic rules of evidence in the
Northern part.

To a very large extent these rules are still applicable in those courts till date. However, the
advent of the British government increased the volume of trade and commerce. The territory no
more remained a local area with little or no commercial life. The Royal Niger Company and other
commercial enterprises changed the commercial life of the people and this to some extent,
influenced the establishment of the British courts in Nigeria.

As mentioned above, the traditional judicial system consisted mainly of the customary courts
system with unwritten rules of practice, procedure and evidence. There were of course Islamic
courts in some parts of the country, chiefly in the Northern Region of the country. The rule of
practice and procedure and evidence in this region was based on the Koran written in Arabic and
known only by Imams and Alkalis.

Note that our concern in this course is not related to type of courts in operation during the
customary, since most of them have undergone considerable changes and have largely been put
on statutory bases with laid down rules governing practice and procedure, and evidence. Our
concern in this course, therefore, is with the rules of evidence applicable in the courts
established by the British administration and later developed by Nigerian Legislature,
namely, the Magistrates’ Courts, the High Courts, the Court of Appeal and the Supreme Court
and the other inferior and superior Courts of record as stipulated in the Nigerian 1999
Constitution39.

B. SOURCES OF NIGERIA LAW OF EVIDENCE

(i). Digest of Law of Evidence of Sir James Fitzgerald Stephen.

Prior to 1945, there was no statute or other written laws, which covered the law of evidence in
Nigeria. Therefore, the English common law on the subject was applied in all the courts
mentioned above. This was the position until the first Evidence Ordinance No. 27 of 1943
dealing with the matter was promulgated. The Evidence Ordinance became operative in 1945.
Its provisions were taken mainly from Digest of Law of Evidence of Sir James Fitzgerald
Stephen. The contents of the Evidence Ordinance have remained virtually unchanged, save
minors amendment since inception. However, it was renamed Evidence Act on October 1,
1960, when the Federal Legislature assumed sovereign authority. The applicable one now is
Evidence Act, 2011 which repealed the Evidence Act Cap E14, LFN. 2004.

(ii). The English Common Law of Evidence, Equity and Statute of General Application
(SOGA), as well as any relevant local statute.

The provisions of the English Common Law of Evidence, Equity and Statute of General
Application (SOGA), as well as any relevant local statute may be referred to for the purpose of
supplementing the provisions of the Evidence Act where necessary. This become necessary on
the account of the provision of section 3 of the Evidence Act 2011, which states inter alia that
“nothing shall prejudice the admissibility of any evidence which would apart from the
provision of the Act be admissible”.

39
See section 6 of the Federal Republic of Nigeria Constitution 1999 (as amended)
The effect of this provision is two-fold: (a). It makes room for the admission of evidence which is
admissible under any other statutory Nigerian enactment, and (b). It allows the admission of
evidence which would have been admissible, had the Act not been passed, under the rule which
existed prior to June 1, 1945. The content of section 3 is impari material with the section 6 (2) (a)
of the English Evidence Act, 1938, and under both Acts, it has been held that this provision
allows the admission of evidence under the rules of the English common law.

It should be noted however that the provision of the Evidence Act takes precedent over any other
laws. In the case Onyeanwusi v. Okpukpara (1953) 14 WACA 311. The WACA remarked that “it
is the Evidence Act, or if it is silent, the Common Law of England applies in the High Court”.
This position is further reinforced by the Constitution of the Federal Republic of Nigeria 1999.
The universal application of the Act is firmly consolidated by the inclusion of Evidence in the
Exclusive Legislative List. Some states have also re-enacted the Act as State Laws dropping only
those provisions that deal with matters purely Federal in character e.g. service of witness
summons outside the state of issue. See sections 253 and 254 of Evidence Act 2011. In the North,
Penal Code is substituted to Criminal Code, where Criminal Code is referred to in the Act. The
above make for the constitutional validity of the Evidence Act.

Note that, resort to the English Common Law can only be made where there is no provision in the
Act. In the case of R v. Itule (1961) 1 ALL NLR 462, where the court had to consider whether
part of a confession of an accused person which tell in his favour is evidence of the fact alleged,
the Federal Supreme Court had to resort to the principle of the Common Law on the matter by
virtue of section 5 (a) of Evidence Act as the Act does not deal with it.

By section 28 Evidence Act, whatever the accused says in his favour cannot be part of confession.
Whereas under the Common Law the whole account of what a party gives of a transaction must
be taken together and is admissible. Thus, the court in R. v Itule (supra) resorted to the principle
of Common Law. Note specifically that, inadmissibility is governed solely by the Act. In R.v
Agwuna (1947) 12 WACA 456 at 458. The Court stated that: “there is no provision in the Act
which allows any evidence to be rejected as inadmissible save as provided in the Act itself”. these
are npow obsolete with the provisions of S.3 of the EA 2011, such that admissibility or
otherwise is solely goverened by the provisions of the Act and other Nigerian legislations

The Act also takes precedence over all Laws, Common Law inclusive. The provisions of the
Evidence Act apply to all proceedings in all courts in Nigeria except: ‘An Arbitrator’ ‘Court
Martial’, ‘Sharia Court of Appeal’, ‘Customary Court of Appeal’, ‘Area Court’ and ‘Customary
Court’. However, in criminal matter, the Area Courts are bound by the provision of the Act e.g.
matters on burden of proof. See section 256 of Evidence Act 2011.

(iii). Fundamental Human Rights

Introduction
Another source of law of evidence in Nigeria is the provisions of the Nigerian Constitution. For
instance, section 36 of 1999 Constitution (as amended) is remarkable in the sense that any
evidence that fails to comply with the tenet of the principle of fair hearing is not acceptable
and in proper circumstances will be set aside on appeal. For instance, section 36 (1) and (4) of
1999 Constitution provide that every Citizen of Nigeria and indeed anyone appearing in any court
in Nigeria, including Native and Customary Courts, as a party to civil suit or as an accused person
is entitled to fair hearing within a reasonable time.
Note that, fair hearing has been held to involve “a fair trial”, and a fair trial of a case consists of
the whole hearing. Hence, the true test of fair hearing is the impression of a reasonable person
who was present in court and from his observation, he/she was of the opinion that justice has been
done or otherwise in a case. In the case of Isiyaku Mohammed v Kano Native Authority (1968) 1
ALL NLR 424, per Ademola, CJN, (of blessed memory) opined that the defect in this definition
lies in the expansiveness of the definition of “a reasonable person” and for this purpose held that.
“Fair hearing” implies that the judicial officer is not in any way biased in so far as the suit is
concerned. Bias is not founded only on monetary favour but will include having a foreknowledge
or previous knowledge of the facts of the case. The test of bias is not a question of whether the
trial tribunal has arrived at a fair result, but whether the trial tribunal has dealt fairly and equally
with the parties before it in arriving at the result.

In the case of Malam Sadau v Abdul Kadiri (1950) I F.S.C 39 in that case, the plaintiff sued the
defendant for a sum of money in the Chief Alkali’s Court. At the trial, the defendant admitted
giving a document, which the plaintiff said that he had in his possession in support of his claim.
The defendant however stated that he was forced to sign the document and sought to call a
witness to bear him out, he was denied this opportunity. The Federal Supreme Court held that
the Alkali Court was wrong not to have allowed the defendant to call his witnesses. Jibowu
FJ (as he then was) said “it is a fundamental principle of the administration of natural justice that
a defendant and his witnesses should be heard before the case against him is determined, and it is,
in my view, a denial of justice to refuse to hear a defendant’s witnesses’.

In the case of The State v Fadare & Ors (1971) NMLR 109, A Magistrate, acting within his
jurisdiction, convicted the applicants of criminal house trespass, but the applicants were not given
an opportunity to offer any defence to the charge made against them. It was held that, the
proceeding disclosed an error on the face of the record, which in effect was a disregard of natural
justice.

In the case of Okon Udofe and others v Akpan Aquissiua and other (1973) 1 S C. 119, the
Supreme Court held inter alia:

“It is - - - one of the rules of natural justice that a tribunal unless it is otherwise
empowered to do so, must base its decision on evidence of some probative value….
Therefore, where there is absolutely no evidence, judgment given by an inferior tribunal
will be a nullity; but if there is evidence, even though there is lack of essential or
material evidence a decision given after such evidence had been addressed would not be
void but would be voidable only”.

One could safely say that there cannot be ‘fair hearing’ as decreed by the Nigerian Constitution
unless the principle of fair hearing are rigorously applied and enforced by Courts. In determining
whether parties have been given fair hearing in the course of adjudicatory processes, the
following issues must be observed strictly.

(a). Publicity of Trial

By virtue of section 36 (3) and (4), proceedings whether civil or criminal shall be held in open
court. This provision is to satisfy the requirement that “Justice must not only be done; it must be
seen to have been done”. The test of justice being seen to be done rests on the view of an
independent and impartial observer sitting in court and listening dispassionately to the entire
proceedings
 In the case of Alhaji Gaji v The State (1975) NNLR 98. The appellants were convicted in the
High Court of Kaduna state of culpable homicide not punishable with death, at the trial they gave
no evidence and did not call any witness, their counsel’s applications for the statement of the
prosecution witnesses to be produced where turned down. It was held that the test of fair trial
must rest on the fair view of a dispassionate visitor to the court who had watched the entire
proceedings and it is not possible to say that the trial of the court was anything but fair.

The requirement of public trial in section 36 (3) and (4) of 1999 Constitution is meant for the use
of everyone without discrimination. Thus, every aspect of criminal proceedings right from
arraignment to the time of delivery of judgment must be conducted in public for the proceedings
to be valid. In the case of Alhaji Gaji v The State (1975) NNLR 98 Edibo v. The State (2007) 10
SCM 1, where the plea of the appellant and other accused persons was taken in the Judge’s
Chambers. The Supreme Court per Tabai JSC declaring this procedure null and void said as
follows:

“ - - - The proceeding of the 13 th of January 1998 where the plea of the Appellant and
others were taken in the judge’s chambers was not only irregular; it was fundamentally
defective rendering the entire proceedings null and void. I hold in the circumstances that
this appeal succeeds on that issue. The appeal is accordingly allowed and the judgment
of the court below set aside. The entire proceedings of the learned trial judge including
the conviction and sentence of the appellant and others tried along with him contravened
the provisions of section 33 (3) of the 1979 constitution and same is hereby declared null
and void and is set aside”.39

It should be noted that the power of the Supreme Court, under its Rules to sit in chambers to
dismiss an appeal is limited to non-contentious applications and was held in two cases of Chime v
Ude (1996) 7 NWLR (Pt. 461) 379 and Oyeyipo v Oyinloye (1987) 1 NWLR (Pt. 50) 56 not to be
unconstitutional, the said Rules having been made pursuant to section 216 of the 1979
Constitution40and indeed made to achieve the very fair hearing guaranteed in section 33 of the
1979 Constitution. It therefore means that, once the order sought to be made is contested, the
matter must be taken in the open court. See the case of Chime v Ude (1996) 7 NWLR (Pt. 461)
379 and Oyeyipo v Oyinloye (1987) 1 NWLR (Pt. 50) 56 Nigeria-Arab Bank Limited v Barri
Engineering Nig. Ltd (1995) 8 NWLR (Pt. 413) 257.

Note that, in spite of the foregoing, the requirement that every judicial proceeding must be held in
public still admit few exceptions, thus, where a case involve an infant, or where the court room is
small and cannot take large number of people, the court may be decongested. Similarly, the court
may order production of official documents in cameral on the ground of public interest. See the
case of Chime v Ude (1996) 7 NWLR (Pt. 461) 379 and Oyeyipo v Oyinloye (1987) 1 NWLR (Pt.
50) 56 Nigeria-Arab Bank Limited v Barri Engineering Nig. Ltd (1995) 8 NWLR (Pt. 413) 257.
Olalere Adebayo v. Concord Press of Nigeria Ltd and others (1982) 3 NCLR 434.

(b). Presumption of Innocence

By virtue of section 36 (5) of the 1999 Constitution, ‘any person charge for criminal offence
shall be presumed innocent until contrary his proved. Except the law imposes on such person,
the burden of proving particular facts. See also section 139 of Evidence Act 2011. By virtue of
section 36 (5), every person charged with criminal offence shall have:

40
Now section 236 of the 1999 Constitution
i. The right to be promptly informed of the offence committed.
ii. Right to be given adequate time to prepare his case.
iii. Right to defend himself personally or by legal practitioner of his choice.
iv. Right to examine in person or by his legal representative witness called by the
prosecution. See section 36 (6) (a-d).

In the case of Olawoyin v C.O.P (1961) NNLR 23. In that case, there was nothing on the record
of the case to show that an opportunity was given to the appellants to give their evidence on oath.
They argued on appeal that, based on this lapse, their constitutional right to fair hearing was in
abeyance. It was held that the question whether there has been a fair hearing is one of substance,
not of form, and must always be decided in the light of realities of any particular case, in this case,
the appellants had failed to establish any prejudice to them from the omission to give them an
opportunity to given evident on oath.

The above requirement is to the effect that the court must take all reasonable steps to ensure that
defence witness attend court to give evidence. In the case of Olawoyin v C.O.P (1961) NNLR 23
Alhaji Ladan. v. C.O.P (1962) N.N.L.R. 26, the appellant was charged for receiving money from
the first prosecution witness and promised to re-pay it. This he failed to do, at the trial, after the
prosecution had closed its case, counsel for the appellant told the court that he would call the
appellant and three others as defence witness. Only the appellant gave his evidence,
adjournments were given to allow appellant to call other witnesses to no avail. The court later
refused subsequent adjournment. The appellant appealed. It was held that, by virtue of section 22
(5) (a) 1963 CFRN, the Court must take all reasonable step to ensure that defence witnesses
attend to give evidence, but since the appellants counsel made no reasonable attempt to summon
his witness. The Court was right to refuse adjournment. Where the accused does not take timely
steps to call his witness, he cannot be heard to complain. In the case of Sunday Omega v The
State (1964) NLR 379. At the preliminary inquiry the Magistrate asked the defendant for the
name of his witnesses which he intend to call at the trial. A week to call witness was given to him,
however, after committal, he did not give the name. His counsel request for adjournment a week
after the trial had commenced to call witness was turned down, he appealed on this ground. It was
held that the defendant was the one to be blamed, he had plenty of time to summon his witnesses
but did not do so.

The right of the accused to the legal practitioner of his own choice under section 36 (6) (c) is to
ensure maximum compliance with the principle of fair hearing. Therefore, where an accused
person is denied this fundamental requirement, the decision of the court will be held null and
void. In the case of Peter Uzodima v Commissioner of Police (1982) 3 NCLR 325, where the
appellant was accused, tried and convicted of stealing by an Area Court which refused to allow
his counsel to represent him at the trial because section 390 of the Criminal Procedure Code
denies a right of audience to lawyer. He alleged a breach of his fundamental right under section
33 (6) (c). On appeal, it was held that section 33 (6) (c) of the constitution was intended to do
away with any law or rules which denied representation by counsel in criminal prosecution.
Consequently, Section 390 of the Criminal Procedure Code which is in conflict with section
33 (6) (c) of the Constitution is null and void.41

The truth about the Constitutional provision to give right of audience to parties ‘counsel is for the
poor as well as the rich and this is an indispensable safeguard of freedom and justice. 42The

41 This case will similarly be decided under the present Section 36 (6) (c) of the 1999 Constitution.

42 Oluyede P. A: Nigeria Administrative Law, University Press PLC, Ibadan, 1991 at P. 461.
constitution expects that even the guilty as well as the innocent should be entitled to a fair trial
irrespective of whether or not he is tried in an Area Court. In the case of Gwonto & others v. The
State (1982) NCLR 312. The principles were clearly noted by the Court of Appeal thus: (a). that
the provisions of section 33 (6) (c) are mandatory, the word “shall” having been used. (b). the
record of proceedings at the court must show compliance with the provisions of section 33 (6) (c)
otherwise there will be inference that they have not been complied with and such proceedings will
be set aside. (c). Section 33 (b) (c) cannot be waived by counsel for an accused as the right is not
that of counsel but the accused. (d). non-compliance by the court with section 33 (b) (c) is a
fundamental defect amounting to on illegality and not a mere irregularity and (e). where any
fundamental right enshrined in the Constitution has been denied or withheld no provision of any
other enactment can save the illegality created by its non-compliance.

The Supreme Court in the recent case of Comptroller MPS and ors v. Adekanye & 25 Others
(2002) 12 SCM 65 at 69 opined that:

“It is manifest that the 2nd respondent had manifested his intention by virtue of Exhibit A,
that he would prefer Mr. Femi Falana to represent his interest in this appeal, it is
unfortunate that his wish in this regard appears not to have been respected. Be that as it
may, bearing in mind that it is a cardinal principle in the administration of justice that a
party to a suit ought to have the right to have a legal practitioner of his choice to defend
his interest in any cause or matter, leave was granted to the applicant as prayed”.43

In that case, the applicant had filed a motion on notice wherein he prayed the court for the
following order amongst others “an order permitting Femi Falana Esq of Falana and Falana
Chambers to represent the 2nd Respondent herein”. The applicant attached to the said motion a
letter he wrote to his former counsel one Mr. Osuala wherein he expressed the intention to have
Mr. Femi Falana to represent his interest in the case. The letter was market exhibit A. In spite of
this letter, the former counsel filed the brief on behalf of all the respondents including the
applicant, hence, the applications to have Mr. Femi Falana as his legal representative.

The problem with the right to legal representation is not only whether or not an accused is able to
afford legal representation but also how far he should be able to insist on a particular legal
practitioner to defend him.44 In the case of Obafemi Awolowo v. Minister of Internal Affairs
(1962) LLR 177. It was held that the right to a legal practitioner of one’s choice protected by the
Constitution contemplates the instruction of the legal practitioner “not under a disability of any
kind”. The condition that the legal practitioners of one’s choice “must not be under a disability of
any kind was duly interpreted in the Awolowo’s case to mean that if the practitioner is outside
Nigeria he must be one who can enter the country as of right and he must be one who is enrolled
to practice in the country.

Under paragraph (d) of section 36 (6), an accused person is entitled to examine, in person or by
his legal practitioners the witnesses called by the prosecution before any court or tribunal and
obtain the attendance and carry out the examination of witnesses to testify on his behalf before the
court or tribunal on the same conditions as those applying to the witnesses called by the
prosecution.

43
See further the case of Ogbah v Federal Republic of Nigeria (2002) 7 SCM 127 at 135
44
Akande, J. O. Introduction to the Constitution of the Federal Republic of Nigeria 1979 (Sweet & Maxwell, 1982)
33.
Failure to observe this provision will render the proceeding of such court or tribunal null and
void. In practice, a witness given evidence in the court by answering a series of question put to
him by his counsel or by the counsel to the other parties to the proceedings. This act of putting
questions to witnesses with a view to obtaining evidence from him is called the examination of
the witness.45 When it is done at the time the witness begins to give evidence, that is called
examination-in-chief, and when thereafter the witness is examined by the opposing counsel that
is cross-examination. If after the cross-examination, the party who called the witness wishes to
clear some ambiguities arising therefrom, he is free again to examine the witness. This last
process is called re-examination.46 The purpose of the examination of witnesses at the various
stages of examination mentioned above is to obtain evidence from witness in proof of the fact
in issue and facts relevant to the fact in issue. Hence, it behooves on the accused person to take
timeous steps to ensure that his witness attend court and give evidence in his defence, failing
which, he cannot be heard to complain.

In the case of Alhaji Ladan v Commissioner of Police (1970) NNL 48.The appellant was charged
for receiving money from the first prosecution witness and promised to repay it. This he fails to
do. At the trial, after the prosecution had closed its case, counsel for the appellant told the court
that he would call the appellant and three others as defence witnesses. Only the appellant gave his
evidence, adjournment was given to allow appellant to call other witnesses to no avail. The court
refused subsequent adjournment, the appellant appealed. It was held inter alia that by virtue of
section 22 (5) (a) of 1963 Constitution, the Court must take all reasonable step to ensure that
defence witnesses attend to give evidence, but since the appellants counsel make no reasonable
attempt to summon his witnesses, the court was right to refuse adjournment.

(c). Right to free Interpretation

Section 36 (6) (e) provides that:

“Every person who is charged with a criminal offence shall be entitled to have without
payment, the assistance of an interpreter if he cannot understand the language used at
the trial of the offence”.

The language of court is English language, but majority of parties to cases in Nigeria are
illiterate, hence, the purpose of the above provision is to allow an accused person to follow court
proceedings. The requirement of interpreter becomes necessary only where a person charged with
a criminal offence does not understand the language used at the trial.

In the case of Anyanwu v The State (2002) 11 SCM 95 at 105. The Appellant was charged along
with 2 others for murder. They each pleaded not guilty after the charge had been read and
explained to them in Ibo language. At the end of the trial, the appellant was found guilty while the
two others were discharged and acquitted. Appellant unsuccessfully appealed to the Court of
Appeal and contended that his fundamental right to fair hearing under Section 33 (6) of the 1979
Constitution (Now Section 36 (6) (e) of the 1999 Constitution) was breached in that when the
appellant and others were arraigned in court, the charge was read over and explained to them in
Ibo language, which presupposes that the appellant understood only the Ibo language. It was
however, found on the court’s record that the Appellant was civil servant and in fact gave his
evidence in English language. It was held that:
45
AkinolaAguda Nigerian Law of Evidence p 506
46
See section 214 of the Evidence Act 2011
 “The use of an interpreter only becomes mandatory where a person charged with a criminal
offence does not understand the language used at the trial. In the instant case, the trial of the
appellant was conducted in English language. From all indications available at the trial and as
demonstrated by exhibits C and D, the appellant understands that language. The fact that the
learned trial judge caused the charge to be explained to the respondents in Ibo language before
their plea was taken is not sufficient to conclude that the Appellant did not understand the
English language….”

It should be noted that the interpreter envisages under Section 36 (6) (e) of the 1999 Constitution
could be anybody. For example, the Court Clerk or Registrar. However, such interpreter must be
fluent in the language understand by the accused person. In Ajayi v. Zaira Native Authority
(1963) 1 All NLR 69. The proceeding at the trial of the appellants in the Native Court were
conducted in the Hausa language which the appellants neither spoke nor understood. They were
Yoruba speakers by birth and understood English, but not perfectly. The proceedings were
interpreted by five different interpreters at successive stages. On appeal, the appellants argued that
the ability of these interpreters to interpret satisfactorily was in doubt. It was held that there was a
failure of justice within the meaning of Section 382 of the Criminal Procedure Code (the section
is impari material with Section 21 (5) (e) of the 1963 Constitution which is now Section 36 (6)
(e) of the 1999 Constitution.
The burden of showing that an interpretation is incorrect as contemplate rests on the accused,
thus, where an accused person have problem to understand the language of the court, he must
complain early enough either personally or through his Counsel. 47In the case of Anyanwu v The
State (supra). It was held that:
“The appellant and the co-accused were represented by a counsel throughout the trial. If the
appellant and the co-accused were not being told in Ibo language what was going on their
counsel would have raised an alarm. If he failed to do so, he cannot complain afterwards”.

(d). The Provision against Retrospective and Retroactive Criminal Legislation

Section 36 (8) of the 1999 Constitution provides that:
“No person shall be held to be guilty of a criminal offence on account of any act or omission
that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed
for any criminal offence heavier than the penalty in force at the time the offence was committed.”

A similarly provision is contained in Section 36 (12) of the 1999 Constitution which provides as
follows:
“Subject as otherwise provided by this Constitution, a person shall not be convicted of a
criminal offence unless that offence is defined and the penalty therefore is prescribed in a written
law ….

The rationale for the above constitutional provisions are to guide against retrospective or
retroactive criminal legislation, in the case of Godwin Ikpasa v Bendel State (1982) 3 NCLR 153
at 156/157. The Supreme Court in this case explained the reason for the entrenchment of Section
22 (7) of the 1963 Constitution which is the same as section 36 (8) of the 1999 Constitution. Sir
Udoma JSC (as he then was) giving the reasons for the provision said inter alia that:

“The provision had sought to protect a person from being prosecuted and punished for an act or
omission which when it occurred did not constitute an offence. The reason for the entrenchment
47
See Edwin Ogba v The State (1992) 2 NWLR (Pt. 222) 164 and Mallam Madu v The State (1999) 1 NWLR (Pt. 482)
386.
of such provisions in the Constitution as a fundamental right would appear to have been two-told.
In the first place, the provisions were intended to prevent retrospective legislation in the field of
criminal law whereby an innocent act or omission or a non-criminal act when it took place might
not overnight be converted into a criminal act or omission punishable under the law….In the
second place, the provisions were intended to prevent the imposition of a heavier punishment; for
an offence which at the time of its commission could only attract a light punishment; for instance,
converting by legislation a simple offence like misdemeanour into a felony which would attract a
heavier punishment on conviction”.

In the case of Ojukwu v. Obasanjo(2004) All FWLR (Pt. 222) 1666 at 1777.48 The Supreme
Court considering the provision of Section 37 (1) (6) which stipulates that a person shall not be
qualified for election to the office of president if he has been elected to such office on any two
previous elections held as follows:

A Constitution like other statutes operates prospectively and not retrospectively unless it is
expressly provided to be otherwise, such legislation affects only rights which come into existence
after it had been passed.

Applying this principle to the provision of section 5 of the Failed Banks (Recovery of Debts) and
Financial Malpractices in Bank Decree No. 18 1994. In the case of Federal Republic of Nigeria
v. Ifegwu (2003) 5 SC 252 at 263/264, where the respondent and five others were arraigned and
tried before the Failed Bank Tribunal, Lagos for the offence of conspiracy to commit felony to
wit: Fraudulently granting credit facilities to Dubic Industries Limited without lawful authority
and in contravention of the rules and regulations of the Alpha Merchant Bank Plc and the
regulatory authorities, that is, Section 5 of the Decree No 18 of 1994. The Court of Appeal per
Aderemi JCA (as he then was) said amongst other that: “there is no crime known to Nigerian law
as fraudulently granting credit facilities” On further appeal to the Supreme Court, it was held
that:

“Section 33 (8) of the 1979 Constitution which was unsuspended and was then
applicable, also forbade retroactivity of criminality as follows - - - It follows that Decree
No 18 of 1994 and Section 33 (8) of the 1979 Constitution were in harmony, there was no
conflict. That circumstance clearly upheld a fundamental principle of constitutional
liberty based on the notion that a person is not to be punished for an act which was not a
crime at the time it was done: See Aoko V Fagbemi (1961)1 All NLR 400. See also
Ogbomor v. The State (1985) I NWLR (Pt. 2) 223 at 233 where this court said that there
is immunity from trial and conviction of a person with respect to an act or omission
which at the time of its commission or omission did not constitute any offence under the
law, no person can be tried and convicted on it”.

It follows that a Judge cannot, under the above provision fashion offence for an accused person .
See the case of Aoko v Fagbemi (1961) 1 All NLR 406.

(e). Rule against Double Jeopardy

Section 36 (9) of the 1999 Constitution provide inter alia that no person who shows that he has
been tried by any court of competent jurisdiction or tribunal for a criminal offence and either
convicted or acquitted shall again be tried for that offence or any offence having the same
ingredients as of the previous offence. The above provision is known as rule against double

48
See also Orthopaedic Hospital Management Board v Mallam Garba (2002) 12 SCM 171 at 181
jeopardy. The rule against double jeopardy has been recognized under the American Constitution
as the Due Process Clause and the Supreme Court in that country has used this to strike down not
only legislation but also act which on the opinion of the court were unreasonable arbitrary, or
unnecessary and arbitrary interference with the right of the individual to his personal liberty. 49 An
accused may be retried if he requests the judge to set aside the original conviction as if he seeks a
reversal by appealing to a higher court.50 If a new trial is granted, however, the due process and
double jeopardy clauses prevent a judge from imposing a more severe punishment than the
punishment imposed by the judge of the first trial. There is no Constitutional restrain on the
imposition of a greater punishment if an accused exercises the option of having the verdict of a
minor court completely set aside and elects a de novo trial – a new trial is as if the first trial had
never taken place – by a court of general criminal jurisdiction. Unlike an appeal, a de novo trial
is a completely fresh determination of guilt or innocence. In any event, an accused must be
given credit for any part of a sentence already served.51A single act may be contrary to several
different laws and constitute several different offence. Prosecution of each offence is not double
jeopardy. Double jeopardy forbids any prosecution twice for the same offence and by the same
government.52
The test of whether an offence is the same is whether the same evidence is required to sustain
conviction. Hence, for the rule of double jeopardy to succeed, the following conditions must be
fulfilled:
i. that the accused had been tried by a court of competent jurisdiction
ii. that he was either convicted or acquitted
iii. that he was tried for the same offence or offence having the same or similar ingredients.

The defences available to the accused person under this rule is expressed in the latin maxim of
autre vois acquit or autré vois convict. These defences is similar to the defence of estoppel per
rem judicata in civil matter.

It should be noted specifically that there is no double jeopardy in trying a person both for a
substantive offence and for conspiring to commit the same offence. Similarly, double jeopardy
will not prevent both civil and criminal proceedings against a person for the same offence. In
other words, a person may be sued to court after he has been acquitted of criminal charge by the
court or sued simultaneously for the offence while the criminal trial is on. Similarly, an appeal
from a court of first instance to a higher court does not constitute a second trial for the invocation
of the rule against double jeopardy. See Nafiu Rabiu v The State (1961) 2 NCLR 293.

(f). A Person Pardon for a Criminal Offence shall not be tried for that Offence again.
Section 36(10) which provide that no person who shows that he has been pardon for a criminal
offence shall again be tried for that offence is a constitutional safeguard for an accused person
who has received state pardon from being tried for the same thereafter.
The power to pardon an accused person or person awaiting criminal trial is a Constitutional
provision vested in the President of the country or the state Governor. See sections 175 and 212 of
the 1999 Constitution (as amended). The power is known as prerogative of mercy or amnesty
and once granted, an accused person cannot be tried for the same offence. The power of the
executive under this heading shall be exercised after consultation with the appropriate Advisory
Council of a State. Hence, the Attorney-General cannot revoke and or inquire into why the
decision to pardon an accused person is arrived at. In the case of State v. Ike (1998) 1 LRCNCC 1

49
Lochner v New York 198 US 45 (1905)
50
Akande, J. O. op cit 34
51
Ibid
52
Odunsi v Abike (2000) FWLR (Pt. 10) 1621 at 1625
at 10. The question which fell to be considered is whether Federal Attorney-General is the proper
authority to revoke a state pardon granted by the president on ground of perceived mistake. The
High Court of Justice, Benin Divisions per Aiwerioghene J held as follows:
“The pardon was granted by the President and one may wonder from where does even the
Federal Attorneys-General derive his authority to countermand an order of the President of the
Federal Republic of Nigeria?”

(g). Right not to be Compelled to give Evidence in one Trial.

By Section 36 (11) of the 1999 Constitution, which provides that no person who is tried for a
criminal offence shall be compelled to give evidence at the trial, an accused may remain silent at
his trial. The purpose of this provision is to permit the accused to have a fair trial, and most
importantly, to protect an accused person from assisting the prosecution which has failed to prove
every material ingredients in the case against him by giving them the opportunity of extracting it
in the witness box under cross-examination.

It should be noted that where an accused person elects to remain silent at the close of the case for
the prosecution, it means that he has rest his case on the prosecution, where he does so, he cannot
be cross-examined by the prosecution and the prosecution is not entitled to pass any comment on
such silence. Thus, in the case of Tulu v Bauchi Native Authority (1965) NMLR 343.It was held
that there cannot be an inquisition of an accused with the object of making him admit guilt or
explain his motives. However, it may not be wise to do so where the prosecution has rendered
damaging evidence since the court will be justified to draw any inference from the available
evidence without more. See the case of Sugh v The State (1988) 5 SCNJ 58.

In the case of Olufemi Babalola v. The State (1989) 7 SC (Pt. 1) 94 at 99/100. The appellants
were charged for the offence of intent to defraud contrary to Section 339 of the Criminal Code,
Laws of Western Nigeria, 1959 and with fraudulently obtaining 8 rolls of carpet from Carpet
Royal (Nigeria) Ltd. Ibadan. At the trial, the prosecution called six witnesses in proves of the
charge, at the close of the case for the prosecution, none of the accused persons testified on his
defence. At the conclusion of the hearing, the trial judge carefully analyzed all the evidence and
convicted the accused persons to various prison terms. Their appeal to the Court of Appeal was
dismissed, on further appeal to the Supreme Court, Honourable Justice Nnaemeka – Agu JSC (as
the then was) who delivered the lead judgment observed as follows:

“- - - in spite of the massive evidence against the first appellant in the trial court, he elected not
to give evidence. He was, of course, within his Constitutional right: See Section 33 (11) of the
Constitution of the Federal Republic of Nigeria, 1979. But there is nothing in that sub-Section to
preclude the trial court from drawing any inference, which the quantum and quality of evidence
called against such an accused person warrant. Hence, whereas prudence dictates that an
accused person should not assist the prosecution which has failed to prove every material
ingredients in the case against him by giving them the opportunity, of extracting it in the witness
box under the fire of cross-examination, it is reckless hazard to insists on the exercise of that
right when the prosecution has made out a prima facie case which calls for the accused
person’s explanation but as did the appellants in this case, he elects not to offer any evidence
in explanation”

Finally, it must be noted that where there is credible weighty and sufficient extraneous evidence
in support of a conviction, such a conviction will not be quashed on appeal merely because of the
breach of the provision of Section 36 (11). See the case of Umaru Garba v COP (1978) 1 LRN
49.
 TOPIC3: BURDEN OF PROOF

INTRODUCTION

‘Proof’ in the law of Evidence as opposing to scientific proof is known as the allegation of facts
and circumstances that convince a tribunal of the truth of such allegation or it is the method by
which the existence or non-existence of facts is established to the satisfaction of the court.

NATURE OF BURDEN OF PROOF.

The nature of burden of proof is understood in two different senses:

1. The burden or obligation to establish a case: This is an obligation imposes by the law. It lies
on a party to persuade the court either by preponderance of evidence (in civil case) or beyond
reasonable doubt (in criminal case) that the material facts which constitute his whole cases
are true and consequently to have the case established and the judgment given in his
favour. See sections 131 and 132 of the Evidence Act, 2011. This burden is called “the
burden on the pleadings” “the legal burden” or ‘persuasive burden”. Legal burden is always
stable, i.e. remaining unchanged throughout the trial on the same party, the party is
determined at the beginning of the trial See Duru v Nwosu (1989) 7 SC (Pt.1) 1.

2. The obligation to adduce evidence on a particular fact or issue: The evidence must be
sufficient to prove the fact in issue so as to give reasonable possibility for the court to decide
the case in his favour. This is usually call ‘evidential burden of proof’. Unlike legal burden,
evidential burden “shift” from one party to the other (i. e it is not static or fixed) in the course
of proceeding. It means that when a party bearing evidential burden discharge it by adducing
sufficient evidence, the opponent came under another evidential burden to disprove those facts
in order to neutralize them. See sections 136 and 140 of the Evidence Act 2011. See the case
of Iwok v University of Uyo (2011) 6 NWLR (Pt. 1243) 211.

ESSENTIAL OF BURDEN OF PROOF.

The main fact or facts in issue must be proved and the obligation of proving those and other
relevant fact rest on the party propounding them. Thus, the burden of proof is always or the party
against whom the judgment of the court would be given if no evidence is produced. See section
132 of the Evidence Act 2011. To understand the essential of burden of proof, it is necessary to
consider various elements of fact. In the context, the definition of following terms will serve as
aids.

What is a fact?
According to section 258 of Evidence Act 2011, fact includes: (anything, state of things, or
relation of things, capable of being perceived by the sense, and (b), any mental condition of which
any person is conscious’. From the foregoing, fact is applied broadly to whatever is a subject of
perception or consciousness.

What is a fact in Issue?

Section 258 of the Evidence Act defines ‘fact in issue’ to include: ‘any fact from which either by
itself or in connection with the facts the existence, non-existence, nature or extent of any right,
liability or disability asserted or denied in any suit or proceeding necessary follow’.

Premised on the above definition, facts in issues are any fact which a party must prove to establish
his case or defence or fact which will affect the credulity of any witness or the admissibility of
piece of evidence. Before a fact is in issue, it must be disputed by parties. It is what the parties
must prove to establish their claim or defence. See the case of Koiki v Magnusson (2001) FWLR)
(Pt. 63) 167.

Which fact is not in issue?

In law, it is trite that a fact alleged by one and admitted by the other is never in dispute. In the case
of Olufosoye v Olorunfemi (1989) 1 NWLR (Pt. 95) 26, the Supreme Court held that an admitted
fact is not a fact in issue.

How to determine fact in issue?

Generally, fact in issue is determined by substantive law and pleading in civil case. In criminal
case, fact in issue is determined by substantive law and charge sheet. The fact in issue is the
ingredient(s) or elements which constitute claim(s) of the Claimant in civil case and the
ingredients of the offence in criminal case. These elements are what a Claimant must prove to
sustain his claim(s) before the court and what a prosecutor must prove to secure the conviction of
the defendant. Conversely, fact in issue is what a defendant must prove to sustain his defence in
civil or criminal cases as the case may be.

In practice, fact in issue must be established by evidence. Such evidence must be relevant to the
issue before the court in accordance with the stipulation of the Evidence Act. See section 1 of the
Evidence Act 2011, which provides thus: ‘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’. Thus, evidence of other occurrence merely tending to
deepen suspicion or appears to be too remote to be material in all the circumstances of the case are
inadmissible. For instance, it is settled law that suspicion, no matter how deepen cannot ground
conviction. In the case of R v Griliopoulous (1953) 20 LLR 114, the accused was charged with
receiving stolen things from P and evidence was given to show that they received on the same day
another stolen thing from another person. It was held that evidence of the other instance of
receiving stolen things could not be used to prove the offence presently charged. The evidence of
the offence must be proved aliunde (i. e prove independently).

WHO MUST PROOF

The burden of proof rests on the person who asserts the existence of such things. Hence, the
basic principle governing the incidence of burden of proof on the pleading is that he who asserts an
allegation whether affirmative or negative must prove it and not the person who denies it. In the
case of Olufosoye v Fakorede (1993) 1 NWLR (Pt. 272) 247, the plaintiff claimed to have
supplied building materials to the defendants site for the building project between 22/4/82 and
April 1983, which was value as N33,827,60 out of which only N5,000.00 was said to have been
paid leaving the balance of N28,827.60. The plaintiff at the trial pleaded and relied in particular on
24 LPO signed by one Akinnuoye. The defendant denied liability on the ground that the contract in
issue was never awarded to him personally but to a company in which the said Mr. Akinnuoye was
an employee and not agent to the defendant. The trial judge found for the plaintiff and the
defendant appealed on the ground of whether the plaintiff actually makes out his case. The court in
allowing the appeal held that it is the law that he who assert that has the burden to proof his
assertion and that a finding of a trial court must be based on evidence proved and not duty of the
court to invent a case for the parties.

Also in the case of Nigerian Army v. Yakubu (2013) 5 SCM 209, it was held that a party who
asserts must prove. For instance, prosecution in criminal cases and plaintiff in civil cases. Note
that under this general principle of law, it is settled principle of law that the proof of
particular fact rest on the person who wants the court to believe in the existence of such fact.

The above general rule requires that the party who alleges first speak. i.e he will put forth his case,
e,g prosecution in criminal case or plaintiff in civil case. Note also that, the party who carries
the legal burden to proof an issue will loose on that issue if at the end of trial, the evidence is
equally balanced. Similarly, the party who carries evidential burden to prove fact in issue
will lose if no evidence is given on the issue.

INCIDENCES OF THE BURDEN OF PROOF IN CRIMINAL CASE

According to section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as
amended), every person who is charged with a criminal offence shall be presumed innocent until
he is proved guilty. Against this background and the rule that who asserts must prove. The general
burden of proving the guilty of the accused rest on the prosecution and also to rebut the
presumption of innocence enjoyed by the accused. Thus, in Cyril Areh v C.O.P (1959) WRNLR
230 AT 237, Kester Acting judge (as he then was) stated thus:

“It is principle of law that the burden of proof lies upon the party who substantially
assert the affirmative of the issue and generally in criminal case, the presumption of
innocence cast on the prosecution the burden of proving every ingredient of the offence”.

The fact in issue in criminal cases are the essential ingredients of the offence as contained in
the substantive law. These ingredients are what the prosecution must prove upon the accused
plea of “Not guilty”. It is mandatory and the prosecution must discharge the burden beyond
reasonable doubt. In the case of Woolmington v D.P.P (1935) A.C 462 at 481. Lord Sankey L.C
said in a murder case that if at the end of the case, there is a reasonable doubt, created by the
evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the
deceased with intentions, the prosecution has not made out the case and the prisoner is entitled to
an acquittal.

This principle was earlier propounded by Lord Atkin in the case of R. v Basil Ranger Lawrence
(1932) NLR 6 at 7 that it has to be remembered that it is an essential principle of our criminal law
that a criminal charge has got to be established by the prosecution beyond reasonable doubt, thus
the benefit of doubt created in any given case is usually resolved in favour of an accused person.

The burden of proving the guilty of the accused that raised the defence of self-defence, accident, or
provocation is on the prosecution. In the case of R v Oladipo Osunbiyi (1961) All NLR 453, the
Fed Supreme Court held that the accused does not bear the onus of proving any of these defences.

Similarly, the burden to proof an alibi is on the prosecution. In the case of Onafowokan v The
State (1987) 3 NWLR (Pt. 6.) 538, the appellant and his daughter were charged with murder of
one Ganiyu Shittu and were tried and convicted by the trial court relying on the evidence of two
eye witness out of seven witnesses called by the prosecution. The event leading to the murder was
as a result of altercation between the deceased family and the two accused persons as a result of
this altercation the deceased mother was seriously injured. She later narrated the ordeal to the
deceased and his friend what happened. They then went to the apartment of the accused to enquire
about the incident, another fight ensued and in the process the 2 nd accused was said to have poured
on the deceased body hot oil contained in a fry pan carried from the burning stove, the 1 st accused
was said to have taken the stove and throw it against the deceased whose cloth caught fire and later
died in the Hospital. The first accused denied ever throwing the stove at the deceased while the 2 nd
accused put up a defence of alibi. She claimed to be in her shop but she was told that there was
fight between her mother and some people, but before she got home those people had left. This
was never investigated by the police. The trial court nevertheless convicted the accused. On
appeal, the Court of Appeal allowed the appeal of the 2 nd accused person on the ground that the
prosecution bears the burden of proving that the 2 nd accused person was present at the scene
of altercation. The court however, confirmed the conviction of 1 st accused, who now appealed to
the Supreme Court. It was held that the principle that the burden of proving a criminal case
beyond reasonable doubt lies on the prosecution means that the primary onus of establishing
the guilt of the accused is always on the prosecution except in very special and limited
circumstances like insanity where the law presumes an accused sane and casts on him the
onus of establishing the contrary. The burden of proving an alibi set up by an accused is not on
the accused. Appeal allowed. In discharging this burden, the law does not prescribe that the
prosecution should call a host of witnesses. The court may convict on the evident of only one
witness if satisfied.

EXCEPTIONS TO THE ABOVE GENERAL RULE

Although the burden of proof in criminal case is on the prosecution. However, in some cases the
burden of proving certain fact is thrown upon the accused, this is contained in the proviso to
section 36 (5) of 1999 Constitution which says:

‘Every person who is charged with a criminal offence shall be presumed to be innocent until he is
proved guilty, PROVIDED that nothing in this section shall invalidate any law by reason only
that the law imposed upon any such person the burden of proving particular facts.

Examples of such particular facts are: the defence of insanity, alibi, provocation, self-defence and
intoxication etc. in criminal case and estoppel, contributory negligence or statute of limitation in
civil case. See section 140 of the Evidence Act 2011

i. The burden of proof of intoxication or insanity is on the accused: See section 139 (3)
(c) of the Evidence Act 2011. The rationale for this is derived from the presumption that
everybody is presumed sane until the contrary is proved. The circumstances in which the
defence of insanity or intoxication can be raised are set out in sections 28 and 29 of
Criminal Code Cap C38. LFN 2004. Similarly, the burden of unfitness to stand trial when
raise warrant its prove by the accused. In the case of Akhidime v The State (1984) NSCC
588 SC. In that case, the appellant was charged and convicted of the murder of his brother.
He contended at the trial that he was acting in a state of dream when he killed the deceased.
 He however led no evidence to establish this fact. His appeal against his conviction failed.
On further appeal to the Supreme Court, he contended that the trial judge erred in law in
convicting him for murder as there was no direct evidence before the court that he was
responsible for the death of the deceased. The Supreme Court held that the only defence
which could have been urged on the evidence before the trial court was one of acting in a
dream state, a defence peculiarly within the knowledge of the appellant. The onus is on the
defence in such a situation to establish the fact that he so acted, the prosecution having
established that the deceased was killed by the voluntary act of the appellant. See also
the case of Igbinovia v UBTH (2001) FWLR (Pt. 50) 1745CA. the appellant brought an
action challenging the constitutionality and legality of his dismissal from the University of
Benin Teaching Hospital. At the trial, the appellant gave evidence but failed to tender in
evidence his letter of appointment upon which he based his claim. The respondent did not
call any witness but rested their case upon that of the appellant. At the end of the trial, the
trial court gave judgment in favour of the respondent. Aggrieved by the judgment, the
appellant appealed to the Court of appeal. In dismissing his appeal, it was held that a
party that has facts especially within his knowledge has the burden of proving the
same. In the instant case, the respondent denied that the appellant was employed by the 1 st
respondent as a purchasing clerk in June 1974. That being the case, the appellant had the
duty to establish the fact of his employment which should have been done by the tendering
of his letter of employment being a fact within his knowledge. Furthermore, in the case of
In Abdul-Rahman v C.O.P. (1971) 1 NMLR 24. The appellant was convicted of
impersonation; he had presented himself to Hamdala Hotel in Kano as a pilot with Pan
African Airline and got credit. The prosecution did not adduce evidence that he was not
such a pilot. It was held by Supreme Court that his conviction was correct, since the fact
that he was such a pilot was peculiarly within his knowledge.

ii. Proof of special plea: The special plea of Autre fois acquit and Autre fois convict is on the
accused. See section 36 (9) of the 1999 Constitution (as amended). Similarly in civil case,
the plea of estoppel per rem judicata is available as a bar to proceeding on cases already
decided by court of competent jurisdiction. See section 169 of the Evidence Act 2011.

iii. The burden of proving the existence of circumstances bringing the case of an accused
person within any exemption or exception from, or qualification to the operation of
the law creating the offence with which he is charge is upon him. See section 139 of
Evidence Act 2011. In Simi Johnson v C.O.P. (1960) WNLR 113. The appellant, who
held a learners permit and had passed her driving test, but had not obtained her driving
license was found driving a vehicle. On a charged under section 7(1) of the Road Traffic
Act, Cap 184, LFN. 1990. It was held that the burden of proof that her case came within the
proviso to the section was on her.

iv. Burden imposed by other Statutes.

(a). By virtue of section 417 (c) of the Criminal Code, it is an offence for a person to have
in his possession by night without lawful excuse any instrument for house breaking.
The prove of such is cast on the accused person

(b). Under section 60 of the Pharmacy Act, Cap 152, LFN 1958, any person found in
possession of a poisonous matter shall, unless he is a registered licensed Medical
Practitioners or any of the other professional specified in the section will be deemed
 to be in possession of it for an illegal purpose unless he shall prove to the contrary. In
the case of Queen v Ohaka (1962) all NLR 805. The appellant was convicted inter
alia for possession of poisonous drug with intent to use it for illegal purpose contrary
to section 60 of Pharmacy Act the Fed Supreme Court held that the onus is on the
accused to prove otherwise.

(c). Under section166 (2) (b) of the Custom and Excise Management Act, No. 55 of
1958. Where a person is found in possession of contraband goods, the onus is on
him to prove that it was lawfully imported. Thus in the case of Fugu v. Board of
Customs and Excise (1970) NMLR 102. Where an accused was charged with
unlawful importation of goods, the onus of proving that the goods were lawfully
imported lies on him.

INCIDENCES OF THE BURDEN OF PROOF IN CIVIL CASE

The rule is that the general burden of proof rest upon the person who asserts the affirmative of an
issue. The plaintiff must prove all those positive allegations necessary to rebut a defence, and
all the facts constituting the essential incidents or elements in his cause of action and upon
which all his legal rights and liabilities depend. This is determined by substantive law. On the
other hand, the defendant must prove any particular defence raised by him.

For instance, in an action for breach of contract, the plaintiff must prove agreement (offer and
acceptance), consideration, performance, default and damage.

Note that by virtue of section 132 of Evidence Act 2011, the burden of proof in a suit or
proceeding lies on that person who will fail if no evidence at all were given on either side. See the
case of Olufosoye v Fakorede (supra), where the court held that, it is the law that he who asserts
that has the burden to prove his assertion, thus, the burden of proof is on the plaintiff since he is
the one who would lose if his material allegations are not substantiated. However, in civil case,
pleadings are very crucial; it is pleadings which show what constitute fact in issue and who is
asserting them. For example, the plaintiff must prove all the facts contain in his “statement of
claim” unless any of them had been admitted by the defendant, he must also prove all facts
denied by the defendant.

Note importantly that there are exceptions to this general rule that the plaintiff carries the burden
of proof in civil cases. For instance, in an action for negligence, if the defendant in his statement of
defence denying negligence, but claim that the plaintiff was guilty of contributory negligence, the
defendant carries the burden of proving the plaintiff’s contributory negligence. Thus, the incidence
of legal burden in civil cases depends substantially upon the nature of defence. See the case of
Sunday Uzokwe v Dansy Industries Nig. Ltd. & Or (2002) 2 SCM 159 at 166. In that case, the
Supreme Court held as follows:

“In civil case, the ultimate burden of establishing a case is as disclosed on the
pleadings. The person who would lose the case if on completion of pleadings and no
evidence is led on either side has the general burden of proof …. It is only when the
plaintiff has made out a prima facie case that the onus of proof shifts from plaintiff
to the defendant and vice-versa, from time to time as the case progresses and it rests
on that party who would fail if no more evidence were given on either side”.
See further the following cases David Itauma v Jackson Akpe-Ime (2000) 80 LRCN 2480 at
2496; Owoyemi v Adekoya & Ors (2003) 12 SCM 277 at 296; Odukwe v Ogunbiyi (1998) 6 SC
72 at 82/83; Morris Udih v Idemudia (1998) 3 SC 50 at 57; Olodo v Josiah (2010) 12 SCM 157
at 169 and Jolasun v Bamgboye (2010) 11 SCM 127 at 150.

Other exceptions to the general rule in judicial proceedings is the incident of presumptions. Note
that presumptions safe the party who can invoke it from proving certain fact in the first instance
and put the onus on the other side. Presumptions may be divided into two categories, namely:

1. PERSUASIVE PERSUMPTION
This occur where the presumption must be drawn unless, the presumed facts can be positively or
unequivocally disprove. The following are persuasive presumptions

A. Presumption of Legitimacy.
A child born during the continuance of a valid marriage between his father and mother or within
two hundred and eighty days after its dissolution, the mother remaining unmarried, the court shall
presume that the person in question is the legitimate son of that man. See section 84 of the
Matrimonial Causes Act, Cap MI LFN. 2004. See also section 165 of Evidence Act 2011. This
presumption is very strong and cannot be displaced by a mere balance of probability but by strong
preponderance of evidence. Also the sections apply to all valid marriage whether monogamous or
customary marriage

B. Presumption of Marriage.
It is presumed that, where evidence is given to the satisfaction of the court, of cohabitation as
husband and wife by such man and woman, it shall be presumed that the parties are validly
married. See section 166 of Evidence Act 2011. Note that this presumption is applicable to man
and woman of either Islamic or Customary law.

C. Presumption of Death.
Under section 164 of Evidence Act 2011, where a person is unheard of for a period of 7 years,
by those who are likely to hear of him if he is alive, he will be presumed to be dead.

2. EVIDENTIAL PRESUMPTION
This occur where the presumption must be drawn unless some evidence can be called to rebut
it. This categories normally determine the incidence of evidential burden. Evidential
presumption includes the following:

A. Presumption of Regularity. See section 168 of the Evidence Act 2011

When any judicial and official appointment or act is shown to have been done in a manner
substantially regular, it is presumed that formal requirement for its validity were complied
with: In the case of Nwobodo v CC. Onoh (1984) 1 SC 1, the appellant challenged the
election of the respondent as governor of Anambra state on the ground that some result of
certain local government were falsified. The SC while dismissing the appeal held that it is
refutable presumption of law that the result of any election declared by FEDECO is
contract and authentic and the onus is in the person who denies its correctness and
authenticity to resolve the presumption.
B. Presumption of Possession.
Where a person is in possession of property, he is presumed to be owner, but where there is a
doubt on the question of possession, the person having the legal title is presumed to be in
possession. In the case of Adeleke v Oyebode (1967) NMLR 133, where the defendant in a
case of dispute over family land laid claimed to the exclusive title to the property. The
Supreme Court held that the dispute involve what was accepted by both sides as original family
land, the onus was then on the defendant to establish his claim to an exclusive ground of the
property in dispute.
Note that, the above case was a deviation from the provision of section 143 of the Evidence
Act 2011, which state inter alia that, when the question is whether any person is owner of
anything of which he is shown to be in possession the burden of proving that he is not the
owner lies on the person who asserts that he is not the owner.

THE SHIFTING OF THE BURDEN OF PROOF

The burden of proof as to any particular fact lies on that person who wishes the court to believe
in its existence, but the burden may in the course of a case shift from one side to the other.
Accordingly section 139 of the Evidence Act provides that the burden of proof as to any
particular fact may in the course of a case shift from side to side. In other words, the burden of
proof in this contest is not static.

See the following cases Onyema v Amah (1988) I NMLR (Pt. 73) 772; Nigerian Maritime
Service Ltd v Bello Afolabi (1978) 2 SC 78. In the case of Okunola v Oduola (1987) 4
NWLR (Pt. 64) 141. (C.A), the appellant in this case before the Ibadan sought an order setting
aside the deed of conveyance on ground of fraud. They claimed that the deed of conveyance
were not duly executed by them being illiterate and that the respondent took more land than
what they were granted to them. Respondent claimed that the land in question was sold to their
father and evidenced by an agreement dated 22nd September 1959. They further claimed that
their father took possession of the land immediately and started exercising right of ownership
without let or hindrance. The trial court found for the respondent. On appeal, it was held
that the appellant did not discharge the initial burden of proof of their allegation in their
pleadings so as to shift the onion of proof and especially since the issue here is not as to
whether the plaintiff had been divested of the ownership of the land in dispute but as to
the area of land purportedly conveyed under the deed of conveyance, the onus is on the
appellants to prove their case to the effect that only two plots of land was transferred and
sold to the respondent and not the area of land in plan attached to Exhibit A.

The operation of the maxim Res ipsa loquitor gives rise to an apparent shifting of the burden.
In this situation the verdict goes to the plaintiff, if the defendant does not give evidence
disproving negligence. It must always be remembered however that the ultimate burden of
proof in criminal cases never shift from the prosecution. See the case of Osagiede v State
(2006) 3 SCM 143 at 162, held that the burden of proof lies on the prosecution and it never
shift and on the whole evidence, if the court is left in doubt the prosecution would have failed
to discharge the onus of proof which the law lays upon it and the prisoner is entitled to an
acquittal.

STANDARD OF PROOF
 In general, the rules are that; in criminal case the standard of proof is beyond reasonable doubt
whereas in civil case, the standard of proof is prove of preponderance of probability/balance of
probability.

1. Criminal Case

In criminal cases, the legal burden of proof is always on the prosecution, the standard of proof
required for the discharged of that burden is that the prosecution has to prove the guilty of the
accused beyond reasonable doubt, this standard is imposed by section 135 (1) of the Evidence
Act, which stipulated that. That ‘if the commission of a crime by a party to any proceeding is
directly in issue in any proceeding civil or criminal’ it must be proved beyond reasonable
doubt.

Generally the onus of proving the essential ingredients of offence is on the prosecution and
does not shift, however, by law, the burden of proof of certain facts is put on the accused. See
the case of Christopher Oti v IGP (1956) NMLR 55, in that case, the accused was charged
will carrying on business as money lender without being in possession of valid lenders permit
contrary to section 5 (6) of the Money Lender Ordinance, Cap 133, of 1948. It was held that
the burden of proving that he had a licence was on the accused person being a fact personally
within his knowledge.

2. Civil Case

The standard of proof required in civil case is that the party on whom the burden of proof on
the pleading lies must establish on preponderance of probability or balance of probability in
his favour. This means that he has to persuade the court that his version of his evidence is
more probable than that of his opponent. His case must be such that the court, after weighing
the evidence of both parties must find a preponderance of evidence in his favour. That is, it
must outweigh the evidence of the opponent, if this legal onus is not discharged, the party is
bound to lose. In Muller v Minister of Person (l947) All ER 372. Lord Denning said:

“It need not reach certainty, but it must carry a high degree of probability, proof
beyond reasonable doubt does not mean proof beyond the shadow of a doubt”.

TOPIC4. PRESUMPTION

Although, the Evidence Act did not define the word presumption. However, the Evidence Act in
sections 145 to 168 etc. provides for various type of presumptions. According to Aguda, 53 the
word ‘presumption’ in some cases means no more than that a certain conclusion must be drawn
by the court until the contrary is proved. This meaning finds support in section 145 (2) of the
Evidence Act 2011, which provides that: ‘whenever it is directed by the Act that the court shall
presume a fact, it shall regard such fact as proved unless and until it is disproved’.

The implication of section 145 (2) is that ‘if no proof to the contrary is offered and accepted by
the court then the fact must be taken as proved. In some other and more frequent cases, it is used
to indicate a conclusion which may be drawn unless it is disproved. 54 Presumptions safe the party
53
Akinola T, Aguda, The Law d Evidence, (3rd edition, Ibadan: Spectrum Law Publishing, 1992) p. 209
54
ibid
who can invoke it from proving certain fact in the first instance and put the onus on the other side
to disprove it. If that party fails to supply the evidence to the contrary, then the court is free to
draw the conclusion without more.

CATEGORIES OF PRESUMPTIONS

Although, there is no clear cut differences between presumptions and according to Lord Denning,
the legal effect of presumptions is generally identical. However, the usual method to classify
presumptions are: presumptions of fact and presumptions of law. A further classification of
presumptions of law are irrebuttable presumptions of law and rebuttable presumptions of law.

3. PRESUMPTION OF FACT

This occur where the presumption must be drawn unless, the presumed facts can be positively or
unequivocally disprove. Premised on this presumption of fact is one which is dependent upon
logical reasoning and which a court is free to draw if it so likes. A presumption of fact is the
logical inference of the existence of one fact from the proved existence of other facts. In most
cases it exists as an example of circumstantial evidence. Note that the court is not, however,
obliged to draw the inference even though no further evidence in rebuttal is offered by the party to
be affected by the inference. Section 167 of the Evidence Act 2011 provides that:

‘The court may presume the existence of any fact which it thinks likely to have happened, regard
being had to the common course of natural events, human conduct and public and private
business in their relationship to the fact of the particular case ---’.

The following are presumptions of fact.

D. Presumption of Intention
A rule for inferring facts which are proved of the intention of the actor has been developed by the
courts, and it is briefly stated thus: a man is presumed to intend all the consequences likely to
follow directly from his conduct.55 In the case of R. v. Adema Arubi 1933) 11 NLR 27, a man, who
posted a letter containing a criminal libel, was held to have delivered it with intent that is should
be read by the addressee. Similarly, in the case of Maye Nungu v. R (1953) 14 WACA 379, it was
held that a man who struck another on the head with a heavily weighted haft of an axe, thus
causing the death of the latter, was presumed to have intended to kill him. However, this
presumption is a rebuttable one.

E. Presumption of Guilty Knowledge

The offences of receiving stolen property under section 427 of the Criminal Code or dishonestly
receiving stolen property under section 317 of the Penal Code both require that the offender must
have the requisite guilty knowledge, that is, the knowledge that the property had been obtained by
means of any act constituting a felony or misdemeanour in the former case, or obtained by theft,
extortion, robbery etc in the latter case. By virtue of section 167 (a) of the Evidence Act, 2011
there is a presumption of guilty knowledge if it is proved that the property has been recently
stolen. The sub-section provides that: ‘a man who is in possession of stolen goods soon after the
theft is either the thief or has received the goods knowing them to be stolen, unless he can account
for his possession’.
55
Phillip Dim v. R (1952) 14 WACA 154 at 155
In the case of Oguntolu v. Police (1953) 20 NLR 128, during a stock taking on 29 th November, a
pair of shoes was missing from Kings Way Stores where appellant worked as a clerk or servant.
In the following January, a pair of shoes identified as the pair of stolen shoes on the first
November, was found in the room of the appellant. He was convicted applying the doctrine of
recent possession in section 184 (a) of the Evidence Act (Now section 167 (a) of the Evidence Act
2011.

Also in the case of Udoh v. The State (1993) 5 NWLR (Pt. 295) 556, the appellants were charged
on three-count information for robbery. The prosecution alleged at the trial that appellant and
others snatched the complainant Volvo car at gun point. The car was later found in possession of
the 2nd appellant. But the appellant pleaded not guilty to the charge. At the conclusion of trial, the
trial judge acquitted and discharged the appellants on counts 1 and 3 but found them guilty of
count 2. Aggrieved by the decision, the appellants appealed to the Court of Appeal. In resolving
the appeal, the Court construed the provisions of section 148 (a) of Evidence Act (now section
167 (a) of the Evidence Act 2011) and held that ‘the doctrine of recent possession is a matter of
evidence by which the court may presume the commission of a crime derives from the English
Common Law as incorporated in section 148 (a) (now section 167 (a) of the Evidence Act 2011),
and is rebuttable presumption which is not one of law but of fact to be determined in the light of
the circumstances of each case especially the time lag between the period when the offence was
committed and the stolen goods were found on the accused. Tobi (JCA) (as he then was) further
held that ‘in the instant case, there was no evidence before the trial judge that the 1 st appellant was
in possession of the Volvo Car. There was however, evidence that it was the 2 nd appellant who
was in possession of the Volvo Car, a possession he was unable to account to the satisfaction of
the learned trail judge. In the circumstances, he ought to have been found guilty of the lesser
offence of receiving the vehicle knowing same to have been stolen and not for armed robbery.

For section 167 (a) of Evidence Act 2011 to apply, there must be evidence that:
(i). the accused was found in possession of some goods;
(ii). the goods were recently stolen; and
(iii). the accused failed to give a satisfactory account of his possession of the goods. See further
the case Eze v. The State (1992) 7 NWLR (Pt. 251) 75.

The general principle of law is that a court may infer guilty knowledge where the accused gives
no explanation as to how he comes to be in possession of goods recently stolen. However, where
there is doubt as to whether the accused person knows or does not know that the goods were
stolen, he is entitled to an acquittal. It is trite law that every doubt in criminal case is to be held in
favour of accused person.

F. Presumption of Continuance
Section 167 (b) of the Evidence Act 2011 raises the presumption that ‘a thing or state of thing
which has been shown to be in existence within a period shorter than that within which such
things or states of things usually cease to exist, is still in existence’.

According to Aguda,56 one of the most applications of this presumption is the presumption in
favour of the continuance of human life. For instance, a person alive and healthy is generally
presumed to be alive a short while after. In the case of R. v. Willshire (1881) 6 QBD 366, it was
held to cover a period of eleven years. It has also held to be seventeen years in the case of R. v.
Jones (1883) 15 Cox C.C 284. Thus, a young man of twenty in good health may be presumed to
56
Aguda, op cit 214
still be living forty or fifty years after whilst the period may be so long in the case of a healthy
man of fifty or sixty years of age.

Note that the presumption can be made use of in some other cases such as condition of a building,
which was seen to be in good condition at a particular place will be presumed to continue to
remain there for some period after, the proof that the building belonged to ‘A’ at a point of time is
admissible in proof that it belonged to him some time after. In the case of Alhaji Rotimi v.
Adegunle & anor (1959) 4 FSC 19, appellant hired a lorry and a driver from the first respondent.
Whilst the lorry was being driven by the first respondent’s driver with the appellant in it, it had an
accident as a result of negligence of the driver and the appellant was injured. It was held that the
presumptions is in favour of the driver’s continuing to be under the control of the first respondent
at the time of accident. See also the case of Ojo Shamonda v. James (1960) LLR 192, a car
belonging to J and driven by P collided with a car belonging to S which was properly parked in
the highway. S brought an action for damages against J. It was held that the motor car was at the
material time being driven by J or his servant or agent.

This presumption will also apply to a case where A and B were proved to be husband and wife at
a particular time. This will be sufficient proof that they were husband and wife sometime after.

D. Presumption of Course of Business

There is a presumption under subsection (c) of section 167, which says that the course of
business has been followed in particular cases. This presumption is not limited to public or
official business but applicable to private business as well. However, it is stronger in the case of
public or official business. In the case of Omoboriowo v. Ajasin (1984) NSCC 81. The Petitioner
after losing the election to the office of Governor of Ondo State filed a petition against the return
of the 1st appellant as Governor. At the trial, the petitioner contended that the appellant was not
duly elected by a majority of lawful votes at the election but that he the petitioner was duly
elected. At the conclusion of trial, the High Court gave judgment for the petitioner and declared
that he was duly elected and ought to have been returned. The appellant appeal to the Court of
Appeal was dismissed. On further appeal to the Supreme Court, it was held that there is in law a
rebuttable presumption that the result of any election declared by the retuning officer is correct
and authentic by nature of section 148 (c) of the Evidence Ordinance (now section 167 (c)) and
the burden is on the person who denies the correctness and authenticity of the return to rebut the
presumption.

E. Presumption of Withholding of Evidence

According to section 167 (d) of Evidence Act 2011, there is a presumption that evidence which
could be and is not produced would, if produced, be unfavourable to the person who withholds it.
This presumption, like other presumption of fact is a matter of logical inference. It cannot be
used to shift the burden of proof in criminal cases from the prosecution to the accused.

Note that before this presumption operates, it must be shown that that such evidence existed; that
it was that party that withheld it; that the evidence was not produce in court; that the evidence
could be produced by application of the human diligence and knowledge. See the case of NSC
(Nig) Ltd. v. Innis-Pallmer (1992) 1 NWLR (Pt. 218) 422.

F. Presumption of Document Creating Obligation in the Hands of Obligor

The last of presumption under section 167 is subsection (e) of the Evidence Act 2011, which
provides that: ‘when a document creating an obligation is in the hands of the obligor, the
obligation has been discharged’.
This subsection, according to Aguda57 allows the court to presume for example, that a promise by
‘A’ to pay ‘X’ a sum of money has been fulfilled if the document witnessing the promise is in the
hands of ‘A’ e.g. IOU. But as it is has often been stressed, this being a rebuttable presumption,
‘X’ will be free to tender evidence to show for example, that ‘A’ stole the document from his
possession or got it from him by false pretences or other fraud. Similarly, a person who had issued
a receipt is presumed to have received the sum of money covered by the receipt.

In the case of Frank Montague Macaulay v. Abudu Seriki & Another (1925) 6 NLR 92, the
plaintiff sought to recover the sum of £200 which he stated he had lent to the defendants in
February 1920 and for which they had given him a written receipt which was produced in
evidence. The plaintiff admitted giving the receipt, but stated that at the time it was given, the
money had not actually passed between the parties and that they had not received it at any
subsequent date. It was admitted that this receipt had been in the possession of the defendants
since it was given to him in February 1920 and no satisfactory evidence was given on behalf of
the plaintiff either to return the receipt to them or to give them the money. It was held that the
giving of the receipt by the defendants was presumptive but not conclusive evidence if they have
received the money.

In the final analysis, it must be noted that the list of presumptions of fact is in-exhaustive and it is
often the case that courts are called upon to presume the existence of one fact from the existence
of a proved fact. What cannot be overemphasized is that such a presumption will not be made
even though there is no rebutting evidence unless such a presumption is irresistible.

IRREBUTTABLE PRESUMPTION OF LAW

Irrebutable presumption of law are to the effect that if a certain fact is proved, then the court
MUST draw a certain conclusion from the proved fact. Evidence in rebuttal of such a conclusion
is inadmissible. Premised on this principle, section 145 (3) of the Evidence Act 2011 provides that
‘when one fact is declared by this Act to be conclusive proof of another, the court shall, on prof
of the one fact, regard the other as proved and shall not allow evidence to be given for the
purpose of disproving it’. Examples of these presumptions are

i. Commission of Crime by a Child below the age of seven years

It is irrebuttable presumption of law in Nigeria that a child below the age of seven years is
incapable of committing offences58 and that a male child under the age of twelve years is
presumed to be incapable of having carnal knowledge under section 30 of the Criminal Code Act.
In any of the offences covered by these two instances, no evidence shall be allowed to show that a
child below seven years is capable of committing an offence. In likewise, no evidence shall be
allowed to show that a male child under the age of twelve years is capable of having carnal
knowledge.

ii. Judgement of Court

Section 173 of the Evidence Act 2011 provides thus: ‘every judgment is conclusive proof, as
against parties and privies, of facts directly in issue in the case, actually decided by the court, and
appearing from the judgment itself to be, the ground on which it was based; unless evidence was
57
Ibid
58
See section 30 of Criminal Code Act and section 50 of the Penal Code Act
admitted in the action in which the judgment was delivered which is excluded in the action in
which that judgment is intended to be proved’.

This presumption, it is submitted, lend credence to the plea of res-judicata which relates to the
jurisdiction of the court. In the case of Nteyoho v. Udo (1991) 5 NWLR (Pt. 189) 100, the
respondent brought an action against the appellant claiming a declaration of title to land. It was
alleged at the trial that the disputed land was the subject of litigation in 2 suits in which the family
of the appellants was successful. The learned trial judge gave judgment for the respondent. On
appeal, the question was whether the land in dispute is the same as the land litigated upon in Suit
Nos. 130/85 and 121/85 and the effect of section 53 of the Evidence Act (now section 173 of the
Evidence Act). It was held that the words res judicata like most other legal terminologies, are of
Latin origin. The plea simply means a matter on which court has previously reached a binding
decision is a matter which cannot be questioned, it being final on the particular issues. Res
judicata is a rule of evidence whereby a party or his privy is precluded from disputing in any
subsequent proceedings matters which had been adjudicated upon previously by a competent
court between him and his opponent.

Note that before a plea of re judicata can succeed, the following conditions must exist. These are:
i. The parties in the present case and in the previous case are the same;
ii. The subject-matter in the present case and in the previous case are the same;
iii. The claim and the issue in the present case and in the previous case are the same;
iv. There must be a decision given by a court of competent jurisdiction. See the cases of
Agbasi & Ors v. Obi & Ors (1998) 1 SCNJ 3 and Bakare v. Bello (2002) FWLR (Pt. 107)
1298.

REBUTTABLE PRESUMPTION OF LAW

The implication of rebuttable presumption of law is that once certain basic facts are proved, the
court would presume the existence of the other facts unless the contrary is proved. The legal
effect of rebuttable presumption of law is to shift the evidential burden of proof from parties in
legal proceedings and it is the most common types of presumptions. Rebuttable presumptions of
law otherwise called evidential presumption include the following:

A. Presumption of Legitimacy.
A child born during the continuance of a lawful marriage between a man and his wife or within
two hundred and eighty days after its dissolution, the wife remaining unmarried is presumed
legitimate child of that marriage. This is a corollary to the presumption that there is access
between the parties and that sexual intercourse has taken place between them, except where there
is judicial separation. See the case of Ettenfield v. Ettenfield (1940) P. 96.

The presumption is without prejudice to section 84 of the Matrimonial Causes Act, Cap MI LFN.
2004, which provides that ‘notwithstanding and rule of law, in proceedings under this Act either
party to a marriage may give evidence proving or tending to prove that the parties to the marriage
did not have sexual relations with each other at any particular time, but shall not be compellable
to give such evidence if it would show or tend to show that a child born to the wife during the
marriage was illegitimate’. The presumption of marriage is provided for in section 165 of
Evidence Act 2011. This presumption is very strong and cannot be displaced by a mere balance of
probability but by strong preponderance of evidence. Also the sections apply to all valid marriage
whether monogamous, customary or Moslem Marriage.
It should be noted that this presumption is very strong under Yoruba Customary Law and would
appear to be stronger as well under the English Law. Even where the wife admits adultery, the
customary courts nevertheless ruled in favour of the legitimacy of the child especially where the
lawful husband of the woman subsequently acknowledges the child as his. In the case of
Olubunmi Cole & Anor v. P. A. Akinyele & Anor, (1960) 5 FSC. 84, ‘C’, a Yoruba man was
married to ‘A’ under the Marriage Act and during the subsistence of that marriage had a child,
‘P’, by another woman and who also had a second child, ‘Q’, for him six weeks after the death of
the wife when he was still a widower. ‘C’ subsequently acknowledged the two children as his
children. After the birth of the second child, ‘Q’, he got married again to yet another woman, ‘B,
under the Marriage Act. It was held that while ‘P’ could not be legitimate under any recognised
system of law, there is a presumption of legitimacy in favour of ‘Q’ under customary law. But
such presumption would be held rebutted by the evidence showing that it would be repugnant to
natural justice, equity and good conscience to apply it. See further the cases of Edet v. Essien
(1932) 11 NLR 47 and Mariyama v Sadiku Ejo (1961) NRNLR. 81.

It should be noted that the presumption of legitimacy is stronger in Nigeria by virtue of the
provisions of section 42 (2) of the Federal Republic of Nigeria Constitution 1999 (as amended)
which provides that: ‘no citizen of Nigeria shall be subjected to any disability or deprivation
merely by reason of the circumstances of his birth’. It is submitted that this section has reinforced
the presumption of legitimacy and no citizen of Nigeria will at present be considered illegitimate
child by reason of the circumstances of his birth once the identity of his father is known whether
acknowledge or not.

B. Presumption of Innocence
Section 36 (5) of the Federal Republic of Nigeria Constitution 1999 (as amended) provides for
presumption of innocence, the section provides that ‘every person who is charged with a criminal
offence shall be presumed to be innocent until he is proved guilty’. The burden of prove place on
the prosecution in criminal case is prove beyond reasonable doubt. This position also finds
support in section 135 of the Evidence Act 2011, which stipulates that ‘if the commission of a
crime by a party to any proceeding is directly in issue in any criminal proceeding, it must be
proved beyond reasonable doubt. In furtherance of this provision, section 135 (2) provides that
‘the burden of proving that any person has been guilty of a crime or wrongful act is, subject to
the provisions of section 139 of this Act, on the person who asserts it, whether the commission of
such act is direct or is not directly in issue in the action. The effect of above provisions place
burden of proof in criminal case primarily on the prosecution. Thus in section 139 (3) (a) and (b)
of the Evidence Act, it is settled principle of law that nothing shall prejudice or diminish in any
respect the obligation to establish by evidence according to law any acts, omissions or intentions
which are legally necessary to constitute the offence with which the person accused is charged.
Similarly, the burden of proof imposes on the prosecution to prove the offence charge remains on
the prosecution in criminal case.

It is important to note that despite the above provisions, the sections admit exceptions. For
instance, the proviso to section 36 (5) of the 1999 Constitution places the proof of any particular
facts on the person asserting it by stating that ‘nothing in this section shall invalidate any law by
reason only that imposes upon any such person the burden of proving particular fact’. In the
same vein, section 135 (3) of the Evidence Act 2011 provides that ‘if the prosecution proves the
commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is
shifted on to the defendant. Thus, in the case of Amusa v. State (2002) FWLR (Pt. 85) 382 CA,
the appellant, a commercial driver was charged to court on the charges of causing death by
dangerous driving on a Federal Highway. At the conclusion of the trial, the trial judge found the
appellant guilty of the offences and convicted him. Aggrieved by the conviction, the accused
appealed to the Court of Appeal where he contended that the prosecution did not proof its case
beyond reasonable doubt. It was held that on the issue of standard of proof in criminal cases,
what is proof beyond reasonable doubt? The phrase, which is of common law origin and also re-
enacted in section 138 (1) of the Evidence Act (now section 135 of the Evidence Act 2011),
provides that whenever the commission of a crime by a party or person is directly in issue in any
proceeding, civil or criminal, it must be proved beyond reasonable doubt. Superior courts of
record have been faced with the duty of interpreting it and they have held in number of cases that
the expression “proof beyond reasonable doubt” does not mean proof beyond shall of doubts.
Thus, if the evidence is so strong against a man as to leave only a remote possibility on his
favour which can be dismissed with the sentence “of course it is possible but not in the least
probable”, the case is said to be proved beyond reasonable doubt. See further the cases of
Nwobodo v. CC Onoh (1984) NSCC/1 SCNLR 1 and A.S.E.S.A v, Ekwenem (2001) FWLR (t.
51) 2034.

Furthermore, the proviso in sections 36 (5) of 1999 constitution and section 135 of the Evidence
Act 2011 are further codified in sections 139 and 140 of the Evidence Act 2011. In section 139
(1) of the Evidence Act 2011, the law is that where a person is accused of any offence, the
burden of proving the existence of circumstances bringing the case within exception or
exemption from, or qualification to the operation of law creating the offence with which he is
charged is upon such person. In the similar vein, section 140 provides that ‘when any fact is
especially within the knowledge of any person, the burden of proving that fact is upon him’.
Thus, where a defendant raises the defence of intoxication or insanity, the burden of proving the
circumstances of these defences and or any other is placed on him. See section 139 (3) (c).

In the final analysis, the burden of proof placed on the defendant charged with a criminal offence
shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution,
whether on cross-examination or otherwise, that such circumstance in fact exist. In the case of
Amuneke v. State (1992) 1 NWLR (Pt. 217) 338, the appellant was charged with murder of his
brother. The prosecution case was that the appellant stabbed the deceased with a knife in the
presence of their mother and ran away. The trial court found the appellant guilty. On appeal,
appellant raised the defences of self-defence, insecurity and witchcraft which were earlier
rejected by the trial court. It was held that the defence of insanity was adequately considered by
the learned trial judge. It must be borne in mind that the onus of establishing the defence of
insanity under section 140 (1) of the Evidence Act (now section 139 (1) of the Evidence Act
2011 lies on the accused. That onus is however discharged on a balance of probabilities. To
establish a defence of insanity, it must be established that the mental disease or natural mental
deformity as the case may be, was such that at the relevant time, the appellant was, as a result
deprived of capacity: (i). to understand what he was doing; or (ii). to control his actions; or (iii).
to know that he ought not to do act or make the commission. It was finally held that the evidence
adduced in this case completely negatives instantly as a defence for the appellant. Also in the
case of Akhidime v. The State (1984) NSCC 588, the appellant was charged with the murder of
his brother. He contended at the trial that he was acting in a state of dream when he killed the
deceased. However, he led no evidence to establish the defence. The trial court convicted him.
The appellant appeal to the Court of Appeal which dismissed the appeal. On further appeal to the
Supreme Court, which was also dismissed, it was held that the onus of defence which could have
been urged on the evidence before the trial court was one of acting in a dream state, a defence
peculiarly within the knowledge of the appellant. The onus is on the defence in such a situation
to establish the fact that he so acted, the prosecution having established that the deceased was
killed by the voluntary act of the appellant, the appeal lack merit. See further the following cases
Igbinovia v. U. B. T. H (2001) FWLR (Pt. 50) 1745 and Nigeria Air Force v. James (2003)
FWLR (Pt. 143 at 257.

C. Presumption of Marriage.
Section 166 of the Evidence Act 2011 provides that ‘when, in any proceeding whether civil of
criminal, there is a question as to whether a man or woman is the husband or wife under Islamic
or customary law, of a party to the proceedings the court shall, unless the contrary is proved,
presume the existence of a valid and subsisting marriage between the two persons where evidence
is given to the satisfaction of the court, of cohabitation as husband and wife by such man and
woman’.

In the case of Piers v. Piers (1849) 2 H.L. Cas 331, a marriage was celebrated in a private house,
and although there was no evidence that the required special licence was ever granted, yet the
court pronounced in favour of the validity of the marriage on the grounds of this presumption.
The presumption of marriage extends to both formal validity as well as to essential validity. Once
a marriage has been proved to be celebrated, there is a presumption that the form it took was
valid. A marriage to the form of which no exception can be taken remains valid until some
evidence is adduced that the marriage is in fact a nullity. Once the party alleging the validity of
the marriage gives evidence of the formal celebration of the marriage, this raises the presumption
that the marriage is valid in its essence and the burden is on the opposite party to show that the
marriage is invalid as a result of a defect in one of the essential requirements of a valid marriage.

Where a man and woman are proved to have cohabited together as man and wife, the law will
presume, unless the contrary be clearly proved, that they were living together in consequence of a
valid marriage, and not in state of concubinage. Thus, in the case of Valaider Aromegary v.
Sembecutty Vaigalie (1881) 6 App. Cas 363 at 371, it was held that the lower court erred in
holding that the plaintiff who contended that she had been validly married according to Tamil
customs, had to prove either their nature or that the alleged marriage complied with them. The
presumption of marriage is especially useful in proving marriage under customary law where no
certificate is ever issued. In the case of Ogunwole & Anor v. Adiatu Raji (1974) 2 WSCA. 202,
the court found proved the marriage of the respondent to the deceased upon the following facts.
Although, the respondent alleged that she was married to the deceased in a Roman Catholic
Church in 1950, she failed to tender a certificate of the marriage. She only gave evidence of co-
habitation and the birth of four children the birth certificate of whom showed the name of the
deceased as their father. She gave all this evidence herself and only a witness who testified to the
fact that he knew the deceased to be a happily married man who loved his wife and children. In
holding for the marriage, the Court of Appeal held that the appellant could only rebut the
presumption of law by very clear and decisive evidence to the contrary.

Under the presumption of marriage, it is trite law that when a woman called as a witness against
an accused person, swears on the Bible and says merely that the accused is her husband without
indicating the form of marriage between them – either Christian, Moslem or Customary – then
there is presumption that she has been married to him under the Christian, monogamous system.
In R. v. Francis Udo Udom (1947 12 WACA 227, it was held that where a spouse of an accused
person is called as witness for the prosecution and is sworn on the Koran or the Bible, a
presumption arises that such a spouse is the spouse of a Moslem or Christian marriage
respectively.
 D. Presumption of Death.
In spite of the presumption of continuance of life earlier discussed, there are circumstances in
which court will presume someone dead. In the context, the Evidence Act 2011 in section 164 (1)
of Evidence Act 2011 provides that, ‘a person shown not to have been heard of for 7 years by
those, if any, who if he is alive, would naturally have heard of him, is presumed to be dead unless
the circumstance of the case are such as to account for his not being heard of without assuming
his death, but there is no presumption as the time when he died, and the burden of proving his
death at any particular time is upon the person who asserts it’.

To determine the provision of section 164 (1) of the Evidence Act 2011, it is the law that the
category of people who would be held to have naturally heard of person if he is alive include his
parent, husband or wife, children and other closed relations and friends. Thus, in the case of The
State v. Okechukwu (1994) 9 NWLR (Pt. 368) 273, the respondent was arraigned on a two counts-
charge which include holding himself out as chief contrary to law. At the trial, evidence was
adduced that the then Oluoha was missing and could not be traced till December, 1986. The
respondent therefore urged the court to invoke the presumption of death under section 143 (1) of
the repealed Evidence Act (now section 164 (1) of the Evidence 2011) on his behalf. The trial
court convicted him as charged. His appeal to the Court of Appeal succeeded. However, on
further appeal to the Supreme Court by the prosecution. The Supreme Court while considering
section 143 (1) of the repealed Evidence Act which is section 164 (1) of the Evidence 2011 held
that a person shown not to have been heard of for 7 years by those who if he is alive would
naturally have heard of him is presumed to be dead unless the circumstance of the case are such as
to account for his not being heard of without assuming his death. However, there is no
presumption as to the time when he died and the burden of proving his death at any particular
time is upon the person who asserts it. In the instant case, the disappearance of the then incumbent
Oluoha came to the notice of the king-maker in September 1982 and the respondent was installed
by the king makers as Oluhoa in December 1986. Thus, the duration of the period when the
Oluhoa was missing was not up to 7 years at the material time. Consequently, the presumption of
death under the section cannot avail the respondent.

Under the second part of section 164 of the Act, which provide inter alia for the test of
determining the order of death of two people who are entitled to property but died same time, the
section states that for the purpose of determining title to property where two or more persons have
died in circumstances in which it is uncertain which survived the other, the law is that they have
died in order of seniority. A good example of such circumstances will include two or person that
died in accident or other disaster. See the case of Hickman v. Peacey (1945) A.C 304 at 314-315.

E. Presumption of Insanity
In criminal law, there is a rebuttable presumption of law that every adult person is sane and
possesses a sufficient degree of reason to be responsible for is acts. See section 27 of the
Criminal Code Act which provides that: ‘every person is presumed to be of sound mind and to
have been of sound mind at any time which comes in question, until the contrary is proved’. As
discussed under the presumption of innocence, it is fundamental principle of law that the burden
of proof in criminal case is upon the prosecution by virtue of sections 36 (5) of the 1999
Constitution and section 135 of the Evidence Act 2011. However, section 139 of the Evidence
Act 2011 provides that nothing shall affect the burden placed on a defendant to prove a defence
of intoxication or insanity. These defences fall under proof of particular facts mention in section
140 of the Act. Premised on the provisions of aforementioned sections, there is a rebuttable
presumption of law that every accused person is fit to stand his trial, until the contrary is proved,
the onus of which is on the accused person. See the case of R. v. Michael Ogar (1961) All NLR
70 at 75.

F. Presumption of Regularity.
The presumption of regularity otherwise in Latin maxim refers to as omnia praesumutur rite esse
acta is subject to sections 146 to 159 and 168 of the Evidence Act 2011. In sum total, the
presumption relates to execution of documents generally and the law is that the court shall
presume regular any document which has been substantially executed in the form in which it
ought to be executed with a certificate by law declared to be admissible as evidence. For
instance, by virtue of section 148, the court shall presume the genuineness of every document
purporting to be the official gazette of Nigeria of a State; the official gazette of any country other
than Nigeria, a newspaper or journal, a copy of resolution of the National Assembly of the State
House of Assembly. See the case of Ogbunyiya v. Okudo (2001) FWLR (Pt. 72) /1978 SC.
Section 168 of the Evidence Act listed various circumstances in which the court will uphold
presumption of regularity in the following terms: (1) when any judicial or official act is shown to
have been done in a manner substantially regular, it is presumed that formal requisites for its
validity were complied with; (2) when it is shown that any person acted in a public capacity it is
presumed that he was duly appointed and was entitled so to act; (3) when a person in possession
of any property is shown to be entitled to beneficial ownership of it, there is a presumption that
every instrument has been executed which it was the legal duty of his trustees to execute in order
to perfect his title; and (4) when a minute produced purporting to be signed by the chairman of a
company incorporated under the Companies and Allied Matters Act, and purporting to be a
record of proceedings at a meeting of the company, or of its directors, it is presumed, until the
contrary is shown, that such meeting was duly held and convened and that all proceedings at the
meeting have been duly had, and that all appointment of directors, managers and liquidators are
valid.

In the case of Udeh v. The State (1999) 7 NWLR (Pt. 609) 1, the appellant and other were
charged with the murder of one Christopher. At the trial, the appellant pleaded not guilty to the
charge. The prosecution led evidence to show that the appellant was one of those people that beat
the deceased to death. The appellant was sentenced to death on the basis of prosecution evidence,
the appellant appeal to the Court of Appeal was dismissed. On further appeal to the Supreme
Court, the appellant contended that his arraignment was not in compliance with the law in that
the charge was not read separately to each of the accused person among others. It was held that
by virtue of section 150 (1) of the Evidence Act (now section 168 (1) of the Evidence Act 2011),
when any judicial or official act is shown to have been done in a manner substantially regular, it
is presumed that formal validity of its validity were complied with. In the instant case, the
arraignment of the appellant was both judicial and official act and having been executed in a
manner which was substantially regular, the maxim omnia praesumuntur rite et solemniter esse
acta domec probetur in contrarium upon which it is presumed that judicial and official acts have
been done rightly and regularly until contrary is proved becomes fully applicable. See the cases
of Onuzulike v. CSD Anambra State (1992) 3 NWLR (Pt. 233) 791, Nadabo v. Dubai (2011) 7
NWLR (Pt. 1245) 155 and Gbadamosi v. Okege (2011) 3 NWLR (Pt. 1243 175. Also in the case
of Nwobodo v CC. Onoh (supra) (1984) 1 SC 1, the appellant challenged the election of the
respondent as governor of Anambra state on the ground that some result of certain local
government was falsified. The Supreme Court while dismissing the appeal held that it is
rebuttable presumption of law that the result of any election declared by FEDECO is correct and
authentic and the onus is in the person who denies its correctness and authenticity to resolve the
presumption.
 G. Presumption of Undue Influence
Generally, through the presumption of omnia praesumuntur rite et solemniter esse acta, the
burden of proving fraud is thrown upon the party alleging it. But where through the fiduciary or
confidential relationship between the parties, one party is able to exert undue influence over the
other, then the onus is on the dominant party to show that in the transaction in question the
servient party did not act because of the undue influence exercised on him by the former. The
relationship which have been held to come under this heading are: parent and child, fiancé and
fiancée, solicitor and client, doctor and patient, guardian and ward and spiritual adviser (or
clergyman) and parishioner. See the cases of Ahimowu Aduke v. R. O. Oyenubi (1968) NMLR
477 and Inche Noriab v. Shaik Allie Omar (1929 AC 127.

H. Presumption of Possession.
When the question is whether any person is owner of anything of which he is shown to be in
possession, he is presumed to be owner, the burden of proving that he is not the owner lies on the
person who asserts that he is not the owner. See section 143 of the Evidence Act 2011. In the
case of Adeleke v. Oyebode (1967) NMLR 133, the defendant in a case of dispute over family
land laid claimed to the exclusive title to the property. The Supreme Court held that the dispute
involve what was accepted by both sides as original family land, the onus was then on the
defendant to establish his claim to an exclusive ground of the property in dispute.

See further the case of Fasoro & Anor v. Beyioku & Ors (1988) 1 NSCC 705, the appellants
brought an action against the respondent claiming a declaration of title to a piece of land. At the
trial, they relied on two conveyances executed in the English form. The respondents traced their
claim to a customary grant and denied that the land in dispute ever belonged to the appellant’s
vendors. They pleaded long and effective possession of the land in dispute. The trial judge gave
the judgment to the appellants. The Court of Appeal set aside the judgment and reversed the trial
court judgment. On further appeal to the Supreme Court, the court considered section 145 of the
repealed Evidence Act (now section 143 of the Evidence Act 2011) and held that a plaintiff must
prove acts of possession or act of ownership extending over a sufficient length of time numerous
and positive enough to warrant the inference that the plaintiff was in exclusive owner before the
presumption in section 145 of the repealed Evidence Act can apply. Long possession is a shield
and not a sword, a weapon more of defence than of offence. The trial court having found and
rightly too, that the plaintiffs title based on the sale and conveyance failed, there was no longer
any necessity to consider whether payment of compensation for crops constituted sufficient acts
of ownership to warrant a declaration of title in favour of the plaintiffs/appellants. See also the
cases of Omonuwa v. Okpere (1991) 5 NWLR (Pt. 189) 36 and Awodil v. Alagbe (2009) All
FWLR (Pt. 454) 1413

I. Presumption of Negligence
Where the plaintiff is injured in consequence of something under the exclusive control of the
defendant or his servant there is a presumption of negligence in the side of the defendant. This is
usually expressed in the maxim res ipsa loquitur, which means fact speaks for itself. Thus in the
case of Julianah Aseleke & Anor v. J. Boboye (1962) WNLR 12, where a driver by a sudden
application of his brakes to a fully loaded vehicle at a corner on a wet day caused accident, it was
held that the doctrine applied.
 It should be noted that if a plaintiff relies on res ipsa loquitur, as a basis for proving negligence
of a defendant, then the primary facts having been admitted, the burden shifts on to the defendant
to establish a defence such as inevitable accident or act of God. In the case of Debo Sowande
Olaiya v. Josiah Folorunso Ososami (1959) WRNLR 262, the plaintiff claimed damages for
negligence of the defendant’s servants or agents as a result of which he had been injured. The
facts were that while the plaintiff was making use of a footpath near where the defendant was
carrying out building operations, a footpath normally used by members of the public, a crane
being operated by the defendant’s servants or agents fell on the plaintiff. The evidence given by
the defendant and his witnesses was that they were unable to explain why the crane fell. It was
held that the presumption of negligence on the defendant was not discharged and the defendant
was therefore liable. The effect of this presumption is that it shifts burden of proof from the
plaintiff to the defendant, unless there is sufficient evidence of the accident.