Evidence Act, 2011

Link to law: http://www.nassnig.org/document/download/5945

EVIDENCE ACT, 2011
EXPLANATORY ME MORANDUM
This Act repeals the Evidence Act, Cap. E14, Laws of the Federation
of Nigeria, and enacts a new Evidence Act, 2011 w h i ch applies to all
judicial proceedings in or before Courts in Nigeria.
EVIDENCE ACT, 2011
ARRANGEMENT OF SECTIONS
SECTION: PART I- GENERAL Evidence may be given of facts in issue and relevant facts.
o Evidence in accordance with section I generally admissible. 3 Admissibility of evidence under other legislation.
PART JI- RELEVANCY 4 Relevance of facts forming part of same transaction. 5 Facts which are the occasion, cause or effect or facts in issue. 6 Motive, preparation and previous or sub-sequent conduct. 7 Facts necessary to explain or introduce relevant facts. 8 Things said or done by conspirator in reference to common intention. 9 When facts not otherwise relevant become relevant. ]0 Certain facts relevant in proceedings for damages. II Facts showing existence of state of mind, body or bodily feeling. I::: Facts bearing on question whether act was accidental or intentional. jJ Existence of course ofbus.ness. when relevant.
PART HI·- RELEVANO: AND ADMISSlIllLITY OF C~;j{TA{NEVJnPWE
14 Discretion to exclude improperly obtained evidence. ]5 Matters court to take into account under section ]4. J 6 What customs admissible. 17 Judicial notice of custom. [8 Evidence of customs. J 9 Relevant facts as to how matter alleged to be custom understood .. 20 Admission defined. 21 Admission by privies. 22 Admissions by persons whose position must be proved as against party to
suit. 23 Admissions by persons expressly referred to by party to suit. 24 Proof of admissions against persons making them, and by or on their behal C 25 When oral admissions as to contents of documents are relevant. 26 Admissions in civil cases, when relevant.
27 Admissions 110t conclusive proof; but may be stop. 28 Confession defined. 29 When confession is relevant. 30 Facts discovered in consequence of information given by defendant. 3 I Confession otherwise relevant not to become irrelevant because of promise
of secrecy, etc. 32 Evidence in other proceedings amounting to a confession is admissible. 33 What evidence to be given when statement forms part of a conversation,
document, book or series of letters or papers. 34 Weight to be attached to admissible statements. 35 Acts of possession and enjoyment of land may be evidence. 36 Evidence of scienter upon charge of receiving stolen property.
I'ART IV - HEARSAY, OPINION AN]} CHARACTER EVIDENCE: RICLEVANCE AN]} ADMISSIBILITY
37 Hearsay defined. 38 Hearsay rule. 39 Statements by persons who cannot be called as witnesses. 40 Statements relating to cause of death. 41 Statements made in the course of business. 42 Statement against interest of maker with special knowledge. 43 Statements of opinions as to public right or custom and matters of general
interest. 44 Statements relating to rile existence of a relationship. 45 Declarations by testators. 46 Admissibility of certain evidence for proving, in subsequent proceeding, the
truth of facts stated in it. 47 When statement made under any criminal procedure legislation may be used
in evidence. 48 Statement of defendant at preliminary investigation or coroner's inquest. 49 Admission ofwritten statements of investigating police officers in certain
cases. 50 Absence of public officers. 51 Statements made in special circumstances entries in books of account. 52 Entry in public records made in performance of duty. 53 Statements in maps, charts and plans. S4 Statement as to fact of public nature contained in certain acts or
notifications. 55 Certificates of specified government officers to be sufficient evidence in all
criminal cases. 56 Certificates of Central Bank officers as evidence in criminal cases.
57 Service of certificates on other party before hearing, 58 Genuineness of certificates to be presumed, 59 Previous judgments admissible to bar a second suit or trial. 60 Admissibility of certain Judgments in certain jurisdictions, 61 Admissibility and effect ofjudgments other than those mentioned in section
60, 62 Judgment, etc, other than those mentioned in sections 59 to 61, when
admissible, 63 Conviction as evidence in civil proceedings, 64 Fraud or collusion in obtaining judgment, or non-jurisdiction of court, may
be proved, 65 Judgment conclusive in favour of judge, 66 Family or communal tradition admissible in land cases, 67 Opinion inadmissible except as provided in this Act. 68 Opinions of experts, when admissible, 69 Opinions as to foreign law, 70 Opinions as to customary law and custom, 7] Facts bearing upon opinions of experts, 72 Opinion as to handwriting, when admissible, 73 Opinion as to existence of "general custom or right" when admissible, 74 Opinions as to usages and tenets, when admissible, 7S Opinion on relationship, when admissible, 76 Grounds of opinion when admissible, 77 Character defined, 78 In civil cases, evidence of character generally inadmissible. 79 Character as affecting damages, 80 In libel and slander, notice must be given of evidence of character, 81 In criminal cases evidence of good character admissible, 82 Evidence of character of the accused in criminal proceedings,
PAHT V -- DOCUMENTAHY EVIDENCE 83 Admissibil ity of documentary evidence as to facts in issue, 84 Admissibility of statement in document produced by computers, 85 Proof of contents of documents. 86 Primary evidence. 87 Secondary evidence, 88 Proof of documents by primary evidence, 89 Cases in which secondary evidence relating to document. 90 Nature of secondary evidence admissible under section 89, 91 Rules as to notice to produce. 92 Proof that bank has made returns or been duly licensed,
93 Proof of signature and handwriting and electronic signature. 94 Identification of person signing a document. 9S Evidence of sealing and delivery of a document. 96 Proof of instrument to the validity of which attestation is necessary. 97 Admission of execution by part to attested document. 98 Cases in which proof of execution or of handwriting unnecessary. 99 Proof when attesting witness denies the execution. 100 Proof of document not required by law to be attested. 101 Comparison of signature, writing, seal or finger impressions with others
admitted or proved. 102 Public documents. 103 Private documents. 104 Certified copies of public documents. 105 Proof of documents by production of certified copies. 106 Proof of other official documents. 107 COUltmay order proof by affidavit. 108 Affidavit to be filled. 109 Affidavit sworn in Nigeria. J 10 Proof of document not required by law to be attested. J 1J Proof of seal and signature. I 12 Affidavit not to be sworn before certain persons. 113 Affidavit defective in form. I )4 Amendment and re-swearing of affidavit. 115 Contents of affidavits. J J 6 Conflicting affidavits, ] ] 7 Form of affidavits. 1] 8 Provisions as to altered affidavit. I 19 Jurat. 120 Declaration without oath may be taken.
PART VI -PROOF 121 Proofoffacts. 122 Facts of which COUltmust take judicial notice need not to proved. 123 Facts admitted need to be proved. J 24 Facts of common knowledge need not be proved.
PART VII - ORAL EVIDENCE AND THE INSPECTION OF REAL EVIDENCE 125 Proof of facts by oral evidence. 126 Oral evidence must be direct. 127 Inspection when oral evidence refers to real evidence.
PART VIII .- EXCLlJSION OF ORAL BY DOCUMENTAHV EVJl)ENCE
129 130
131 ]32 133 ]34 135
136 137
]38 ]39 ]40 ] 41 ]42
143 ]44
]45 146 i-17 148
149
]50 ]51 152 ]53 154 155 156 157 158
128 Evidence of terms of judgments, contracts, grants and other dispositions of property reduced to a documentary form. Evidence as to interpretation of documents. Application of this Part. PART IX - PRODUCTION AND EFFECT os EVll)ENCE Burden of proof. On whom burden of proof lies. Burden of proof in civil cases. Standard of proof in civil cases. Standard of proof where comm ission of crime in issue and burden where guilt of crime, etc. asserted. Burden of proof as to particular fact. Standard of proof where burden of proving fact, etc. placed on defendant by law. Burden of proving fact necessary to be proved to make evidence admissible. Burden of proof in criminal cases. Proof of facts especially within knowledge. Exceptions need not be proved by prosecution. Burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent. Burden of proof as to ownership. Proof' ofgood faith in transactions where one party is in relation of active confidence. PART X -- PRESUMPTIONS AND ESTOPPEL Rules as to presumptions by the court. Presumption as to genuineness of certified copies. Presumption as to documents produced as record 0 f evidence. Presumption as to gazettes, newspapers, Acts of the National Assembly and other documents. Presumption as to document admissible in other countries without proof or seal or signature. Presumption as to powers of attorney. Presumption as to public maps and charts. Presumption as to books. Presumption as to telegraphic and electronic messages. Presumption as to due execution of documents not produced. Presumption as to handwriting, etc. in documents twenty years old. Proper custody defined. Presumption as to date of documents. Presumption as to stamp of a document.
159 160 161 162 163 164 165 166 167 168 169 170 171 172 J73 174
175 176 177
in 179 180 181 182 183 184 185 186 187 188
189
190 191 192 193 194
Presumption as to sealing and delivery. Presumption as to alternative. Presumption as to age of parties to a conveyance or instrument. Presumption as to statements in documents twenty years old. Presumption as to deeds of corporation. Presumption of death fr0111seven years absence and other facts. Presumption of legitimacy. Presumption of marriage. Court may presume existence of certain facts. Presumptions of regularity and of deeds to complete title. Estoppel. Estoppel of tenant; and of licensee of person in possession. Estoppel of bailee, agent and licensee. Estoppel of person signing Act of lading. Judgment conclusive of facts forming ground of judgment. Effect of j udgment not pleaded as estoppel. PART XI - WITNESSES Who may testify. Dumb witnesses. Cases in which banker or officers representing other financial institutions not compellable to produce books. Parties to civil suits and their wives or husbands. Competence in criminal cases. Competence of person charged to give evidence Comment on failure by defendant to give evidence. Evidence by husband or wife, when compellable. Witness not to be compellable to incriminate himself. Production of title deeds or other documents of witness not a party. Production of documents which another person could refuse to produce. Evidence by spouse as to adultery. Communications during marriage. Compellability, of justices etc. or the persons before whom the proceeding is being held. Restriction on disclosure as to source of information in respect of commission of offences. Evidence as to affairs of State. Official communication. Professional communication between client and Icgal practitioner. Section 192 to apply to interpreters and clerks. Privilege not waived by volunteering evidence.
195 196 197 198 199 200 20J 202 203 204 205
206 207 208 209 2JO 2 J I 2J2 213 214 215 ::16 217 218 219 220 221 222 223 224
225 226
227 228 229 230
Confidential communication with legal advisers. Statements in documents marked "without prejudice". Corroboration in actions for breach of promise of marriage. Accomplice. Co-defendant not an accomplice. Number of witnesses. Treason and treasonable offences. Evidence on charge of perjury. Exceeding speed limit. Sedition. PART XII -TAKING OF ORAL EVIDENCE AND EXAMINATION OF WITNESSES Oral evidence to be on oath or affirmation. Witness to be cautioned before giving oral evidence. Absence of religious belief does not invalidate oath. Cases in which evidence not given upon oath may be received. Unsworn evidence of a child. Order of production and examination of witnesses. Court to decide as to admission of evidence. Ordering witnesses out of court, Preventing communication with witnesses. Examination-in-chief, cross-examination and re-examination. Order and direction of examination. Cross-examination by co-defendant ofprosecution witness. Cross-examination by-co-defendant of witness called by a defendant. Production of documents without giving evidence. Cross-examination of person called to produce a document. Witnesses to character. Leading question. Evidence as to matters in writing. Question lawful in cross-examination. Court to decide whether question shall be asked and when a witness may be compelled to answer. Question not to be asked without reasonable grounds. Procedure of court in case of question being asked without reasonable grounds. Indecent and scandalous questions. Questions intended to insult or annoy. Exclusion of evidence to contradict answers to questions testing veracity. How far a party may discredit his own witness.
231 232 233 234
235 236
237 238
239 240 241 242 243 244 245
246 247
248 249 250
251
252
253 254
255 256 257 258 259
Proof of contradictory statement of hostile witness. Cross-examination as to previous statements in writing. Impeaching credit of witness. Special restrictions in respect of permissible evidence in trial for sexual offences. Evidence of witness impeaching credit. Questions tending to render evidence of relevant fact more probable, admissible. Former statements of witness may be proved to show consistency. What matters may be proved in connection with proved statement relevant under sections 40 t050. Refreshing memory. Testimony to facts stated in document mentioned in section 239. Right of adverse party as to writing used to refresh memory. Production of documents. Exclusion of evidence on grounds of public interest. Giving as evidence document called for and produced on notice. Using, as evidence a, of document production of which was refused on notice. Judge's power to put questions or order production of documents, etc. Power of assessors to put questions. PART XII] -- EVIDENCE OF PREVIOUS CONVICTION Proof of previous conviction. Proof of previous conviction outside Nigeria. Additional mode of proof in criminal proceedings of a previous conviction. PART XIV - WRONGFUL ADMISSION AND REJECTION OF EVIDENCE Wrongful admission or exclusion of evidence. PART XV - SERVICE AND EXECUTION THROUGH-OUT NIGERIA OF PROCESS TO COMPEL THE ATTENDANCE OF WITNESSES BEFORE COlJRTS OF THE STATES AND THE FEDERAL CAPITAL TEHRITORY, ABU.IA AND TilE FEDERAL HIGH COURT Interpretation of "Court" in this part. Subpoena or witness summons may be served in another state. Orders for production ofprisoners. PART XVI - MISCELLANEOUS AND SUPPLEMENTAL Regulations. Application. Repeal. Interpretation. Citation.
EVIDENCE ACT, 2011
A Bill
For
An Act to repeal the Evidence Act, Cap. E14, Laws of the Federation of Nigeria, and enact a new Evidence Act which shall apply to all judicial proceedings in or before Courts in Nigeria; and for related matters
[oNAl'TED by the National Assembly of the Federal Republic of Nigeria .
PART I - GENERAL
Relevant Evidence in Suits and Proceedings
1. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereafter declared to be relevant, and of no others
Provided that .-
(a) the court may exclude evidence of facts which though relevant or deemed to be relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case; and
(b) this section shall not enable any person to give evidence of a fact which he i< disentitled to prove by any provision of the law for the time being in force.
2. For the avoidance of doubt, all evidence given in accordance with section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which this Act applies:
Provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this Act.
3. Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria.
PART II ,- RELEVANCY
Relevance of Facts
Commencement
Evidence may be given of facts in issue and relevant facts
Evidence In accordance with section I gencratf admissible.
Admissibility of evidence under other legislation
4. Facts which, though not in issue. arc so connected with a fact in issue as to form part or the same transaction. are relevant. whether they occurred at the same time and place or at different times and places.
5. Facts which arc the occasion, cause or effect. immediate or otherwise, ofrelevant facts. or facts in issue. or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction. arc relevant.
6. (I) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
(2) The conduct. whether previous or subsequent to any proceeding-
(a) of any party to any proceeding, or an agent to such party, in reference to such suit or proceeding or in reference to any fact in issue in it or a fact relevant to it; and
(b) of any person an offence against whom is the subject of any proceeding. is relevant in such proceedings if such conduct influences or is influenced by any fact in issue or relevant fact.
(3) The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements. but this provision shall not affect the relevance of statements under any other section.
(4) When the conduct of any person is relevant, any statement made to him or in his presence and hearing which affects such conduct is relevant.
7, Facts
(1) necessary to explain or introduce a fact in issue or relevant fact;
(b) which support or rebut an inference suggested by a fact in issue or relevant fact;
(c) which establish the identity of anything 01" person whose identity is relevant:
(d) which fix the time or place at which any fact in issue or relevant fact happened: or
(e) which show the relation of parties by whom any such fact was transacted. arc relevant in so far as they are necessary for that purpose.
8. (J) Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong. anything said, done or written by any aile of such persons in execution or furtherance of their common intention, after the time when such intention was first entertained by one of them, is a relevant fact as against each of the
RC\cV-
(a) the fact that other property stolen within the period of 12 months preceding the date of the offence charged was found or had been in his possession: and
(b) the fact that within the 5 years preceding the date of the offence charged he was convicted of any offence involving fraud or dishonesty.
(2) The (act mentioned in subsection (i) (b) of this section may not be proved unless-·
Weight to bv auachcd 10",I"",,,b'" suucmcms
I\c\S "rp{h.'\S.'lit'l~ id](!
cnjoymcut (Of iil)~;: l1l:-l; be cv.dcncc
l.vidcncc nl:>..:ic:nlt:l upon charge 01 receiving stolen pr()pcn~
(a) 7 days notice in writing has been given to the offender that proof of such previous conviction is intended to be given: and
(b) evidence has been given that the property in respect of which the offender is being tried was found or had been in his possession.
PARI IV--- HEARSA Y, OPINION AND CHARACTER EVIDENCE: RELeVANCE AND ADMISSIBILlTV
Hearsay Evidence
Hearsay Evidence Generally.
37. Hearsay means a statement ---
(a) oral or written made otherwise than by a witness in a proceeding; or
(b) contained or recorded in a book, document or any record whatever. proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
J Icursay defined
38. Hearsay evidence is not admissible except as provided in this Part or by or under any Hearsay rule other provision of this or any other Act.
Statements made by Persons who cannot be called as Witnesses
39. Statements. whether written or oral of facts in issue or relevant facts made by a person
(a) who is dead:
(b) who cannot be found:
(c) who has become incapable of giving evidence; or
(d) whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are admissible under section 40 to 50.
40. (1) A statement made by a person as to the cause of his death, or as to any of the circumstances of the events which resulted in his death in cases in which the cause of that person's death comes into question is admissible where the person who made it believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery.
(2) A statement referred to in subsection (J) of this section shall be admissible whatever may be the nature of the proceeding in which the cause of death comes into question.
Suucmeut-, h:- l'~'r~(ljl' who cannot h,' L',dkd a~wuncssc-,
Statements relatin!:! 10 cause or death
41. A statement is admissible when made by a person in the ordinary course of business. and in particular when il consists of any entry or memorandum made by him in books, electronic device kept in the ordinary course of business, or in the discharge of a professional duty, or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind. or of a document used in commerce written or signed by him. or or the date of a letter or other document usually dated. written or signed by him:
Provided that the maker made the statement contemporaneously with the transaction recorded or su SOOI1 thereafter that the court considers it likely that the transaction was at that time still fresh in his memory,
42. A statement is admissible where the maker had peculiar means of knowing the matter stated and such statement is against his pecuniary or proprietary interest and-
(3) he had no interest to misrepresent the matter: or
(b) the statement, if true, would expose him to either criminal or civil liability,
43. (I) A statement is admissible when such statement gives the opinion of a person as to the existence of any public right or custom or matter of general interest, the existence of which, if it existed, the maker would have been likely to be aware.
(~) /\ statement referred to in subsection (I,l of this section shall not be admissible unless il was made before any controversy as to such right. custom or matter. had arisen. 44. (1) Subject to subsection (2) of this section. a statement is admissible when it relates ie, the existence of relationship by blood. marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge,
(2) A statement referred to in subsection (1) of this section shall be admissible under the following conditions->
(a) that it is deemed to be relevant only in a case in which the pedigree to which it relates is in issue, and not to a case in which it is only relevant to the issue, and
(b) that it must be made by a declarant shown to be related by blood to the person to whom it relates, or by the husband or wife of such a person:
Provided that=-
(i) a declaration by a deceased parent that he or she did not marry the other parent until after the birth of the child is relevant to the question of the paternity of such child upon any question arising as to the right of the child to inherit real or personal property under any legislation; and
xuncmcnrs made i), the course or business
Statement aguinst interest otmakcr wuh special knowledge
Starcmcrus 01 opuuon-, as to public right UI custom and maucrs or general interest
"lilll;Il1(!1l1',I'.'i,,,i;l,
the existence or a relationship
(ii) in proceeding fur the determination of the paternity of any person. a declaration made by a person who. if an order were granted, would stand towards the petitioner ill any of the relationships mentioned in paragraph (h) of this subsection, is deemed relevant to the question of the identity or the parents of the petitioner; and
(c) that the statement must be made before the question in relation to which it is to be proved had arisen. but it does not cease to be admissible because it was made for the purpose of preventing the dispute from arising.
45. (1) The declarations of a deceased testator as to his testamentary intentions and as to the content of his will, arc admissible when--
(a) his will has been lost and when there is question as to what were its contents: or
(b) the question is whether an existing will is genuine or was improperly obtained: or
(c) the question is whether any and which of more existing documents than one constitute his will.
(2) In the cases mentioned in subsection (1) of this section. it is immaterial whether the declarations were made before or after the making or loss of the will.
4(). (I; Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it is admissible for the purpose of proving in a subsequentjudicial proceeding. or in a later stage of the same judicial proceeding the truth of the facts which it states. when the witness cannot be called for any of the reasons specified in section 39. or is kept out ofthe wav by the adverse party:
Provided that
(a) the proceeding was between the same parties or their representatives in interest:
(b) the adverse party in the first proceeding had the right and opportunity to cross- examine; and
(c) thc questions in issue were substantially the same ill the first as in the second proceeding.
(2) A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the defendant within the meaning of this section.
Dcclaranous b~ rcsrators
.'\dllli~~ihiili>"j vcrttur- L", ;Li":IIL'L' JPI r'''' ;"g. m "'"""",.,,, procccdinu. the truth of fiU.':b slated in il
47. A statement in accordance with sections 290 and 291 or section 3J9 of the Criminal Procedure Act. may afterwards be used in evidence on the trial of any person accused of all offence 10 which the same relates, if the person who made the statement cannot be called for any of the reasons specified in section 39, and if reasonable notice of the intention to take such statement was served upon the person against whom it is to be read in evidence and he had, or might have had, if he had chosen to be present, full opportunity of cross-examining the person making the statement.
48. An\ statement made by a defendant at a preliminary investigation or at a coroner's inquest may be given in evidence.
49. Notwithstanding anything contained in this Act or any other law but subject to this section, where in the course of any criminal trial, the court is satisfied that for any sufficient reason, the attendance of the investigating police officer cannot be procured. the written and signed statement of such officer may be admitted in evidence by the court if·,
(a) the defence does 110tobject to the statement being admitted; and
(b) the court consents to the admission of the statement.
50. In the case or a person employed in the public service of the Federation or of a State who is required to give evidence for any purpose connected with a judicial proceeding, it shall be sufficient to account for his non-attendance at the hearing of the said judicial proceeding if there is produced to the court either a Federal or State Gazette or a telegram, an email or letter purporting to emanate from the head of his department. sufficiently explaining to the satisfaction of the court his apparent default.
51. Entries in books of accounts or electronic records regularly kept in the course of business arc admissible whenever they refer to a matter into which the COUli has to inquire. but such statements shall not alone be sufficient evidence to charge any person with liability.
52. An entry in any public or other official books, register or record, including electronic record stating a fact ill issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person in the performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself admissible. 53. Statements of facts in issue or relevant facts made in published maps or charts generally offered for public sale. or in maps or plans made under the authority of Government, as to matters usually represented or stated in such maps. charts or plans, are themselves admissible.
54. When the court has to form an opinion as to the existence of any fact of a public nature, any statement of it. made in a recital contained in any enactment or in any proclamation or speech of the President in opening the National Assembly, or in any proclamation or speech. or in any statement made in a Government or public notice appearing in the Federal Gazette or in a State notice or a State public notice appearing in a State Gazette or the Government Gazeue of any other country is admissible.
When snncmcnr made under ,IllY crunuml procedure legi.~I
(a) if the maker of the statement either
(i) had personal knowledge of the matters dealt with by the statement, or
tii) where the document in question is or forms part of a record purporting to be a con tinuous record. made the statement (in so far as the matters dealt with by it are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have. personal knowledge of those matters: and
(b) if the maker of the statement is called asa witness in the proceeding:
Provided thal the condition that the maker of the statement shall be called as a witness need not be satisfied ifhe is dead, or unfit by reason of his bodily or mental condition to
Evidence or churactci ottuc accused in cruniua! proceeding
"h!I1)!ssibilit: (): d'lClIIllL'IlI,lI': n idcncc as ttl I:,(;IS ill issue
attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.
(2) In any proceeding, the court may at any stage of the proceeding, if having regard to aJi the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused. order that such a statement as is mentioned in subsection (I) of this section shall be admissible as evidence or may without any such order having been made. admit such a statement in evidence notwithstanding that -
(n) the maker of the statement is available but is not called as a witness: and
(b) the original document is not produced, if in lieu of it there is produced a copy of the original document or of the material part of it certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.
(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a lime when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.
(4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written. made or produced by him with his own hand. or was signed or initialed by him or otherwise recognised bv him ill writing as one for the accuracy of which he is responsible.
(5) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of this section, the court may draw any reasonable inference from the form or contents of th.: document in which the statement is contained, or from any other circumstances. and may, in deciding. whether or not a person is fit to attend as a witness, act on a certificate purporting to tie the certificate of a registered medical practitioner.
Admissibility otStatements in Documents Produced h)' Computers.
84. (]) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible. if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.
(2) The conditions referred 10 in subsection (l ) of this section are
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly lo store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not by anybody, whether corporate or not, or by any individual;
Adnussibilu-, uf statement in dfKII1J1clll
produced b:- computers
(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly 01' was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) that the information contained in the statement reproduces 01' is derived from information supplied to the computer in the ordinary course of those activities.
0) Where over a period the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in subsection (2) (a) of this section was regularly performed by computers, whether->
(a) by a combination of computers operating over that period;
(b) by different computers operating in succession over that period:
(c) by different combinations OJ computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period. 1I1 whatever order. of one or more computers and one or more combinations of" computers.
all the computers used for that purpose during that period shall be treated "lor the purposes u!' this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceeding where it is desired to give a statement in evidence hv virtue of this section. a certificate -.
(a) identifying the document containing the statement and describing the manner 111 which it was produced;
(b) giving such particulars of any device involved in the production of that document a'>may be appropriate for the purpose of showing that the document was produced by a computer:
(b) dealing with any of the matters to which the conditions mentioned in subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management ofthe relevant activities, as the case may be. shall be evidence of the matter stated in the certificate: and for the purpose of
this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section-
(a) information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment:
(b) where, in the course or activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(e) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Primm]! and Secondary Documentary Evidence
85. The contents of documents may be proved either by primary or by secondary evidence.
R6. (L) Primary evidence means the document itself produced for the inspection of the court.
~2) Wherc a document has been executed in several parts. each part shall be primarv evidence ofthe document.
(3) Where a document has been executed in counterpart. each counterpart being executed b: one or some of the parties only. each counterpart shall be primary evidence as against the parties executing it.
(4) Where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each sha}] be primary evidence of the contents of the rest; but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.
87. Secondary evidence includes->
In) certified copies given under the provisions hereafter contained in this Act:
(b) copies made from the original by mechanical or electronic processes which IJ1 themselves ensure the accuracy of the copy. and copies compared with such copies;
(c) copies made from or compared with the original:
1'1'001ofcontems ill documents.
1)rimar~ evidence
(d) counterparts of documents as against the parties who did not execute them; and
88. Act.
(e) oral accounts of the contents of a document given by some person who has himself seen it.
Documents shall be proved by primary evidence except in the cases mentioned in this
N9. Secondary evidence may be given of the existence. condition or contents or a document when
(a) the original is shown or appears to be in the possession or power-s-
(i) of the person against whom the document is sought to be proved, or
(ii) of any person legally bound to produce it, ancl when after the notice mentioned in section 91 such person does not produce it;
(b) the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) the original has been destroyed or lost and in the latter case all possible search has been made for it;
(d) the original is of such a nature as n01 to be easily movable;
\2} the original is J public document within the meaning of section ]02:
(f) t;1Coriginal is a document of which a certified COP)· is permitted by this Act or b; any other law in force in Nigeria, to be given in evidence;
(g) the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection; or
(h) the document is an entry in a banker's book.
90. (I) Tne secondary evidence admissible in respect of the original documents referred to in tile several paragraph, of section 89 is as follows->-
(a) in paragraphs (3). (c) and (d). any secondary evidence of the contents of the document is admissible:
(b) in paragraph (b), the written admission is admissible:
(c) in paragraph (c) or (f), a certified copy of the document, but no other secondary evidence, is admissible;
1''''0101 documents ,,, primM) evidence
Cases ill which sccol1d'lI~ evidence relating III document
Nature or se\;ol1d
l. by (1 copy sealed with the sea] of a foreign or other court to which the original document belongs or, in the event of such court having no seal, to be signed by the judge, or, if there be more than one judge, by anyone of the judges of the said court, and such judge must attach to his signature a statement in writing on the said copy that the court of which he is judge has no seal, or
11. by a copy which purports to be certified in any manner which is certified by any representative of Nigeria to be the manner commonly in use in that country for the certification of copies of judicial records; and
(i) public documents of any other class elsewhere than in Nigeria, by the original, or by a copy certified by the legal keeper of such documents, with a certificate under the seal of a notary public, or of a consul or diplomatic agent that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.
Afliduvi/,\
107. A court may. in any civil proceeding make an order at any stage of such proceeding directing that specified facts may be proved at the trial by affidavit with or without the attendance of the deponent for cross-examination:
Coun rnay order proof h~ afndll\'jl
Provided that where a party desires the attendance of such deponent for cross-examination the court shall require his attendance for that purpose where this would not result in unjustifiable delay or expense.
lOR. Before an affidavit is used in the COUlt for any purpose, the original shall be flied in the court. and the original or an office copy shall alone be recognised for any purpose in the court.
Affidavn to bL' ullcd
109, Any affidavit sworn before any judge, officer or other person duly authorised to lake affidavits in Nigeria may be used in the court in all cases where affidavits are admissible.
Affidavit ~W{)1"Il ill Nigeria
t 10. Any affidavit sworn in any country other than Nigeria beforc->-
(a) a judge or magistrate, being authenticated by the official seal of the court to which he is attached, or by a notary public; or
Proof or document not required b, I"" I" be attested
(b) the duly authorised officer in the Nigerian Embassy. High Commission or Consulate in that country may be used in the court in all cases where affidavits are admissible.
Ill. The fact that an affidavit purports to have been sworn in the manner prescribed in the preceding sections shall be prima facie evidence of-·
Proof ot "cal and signature.
(a) the seal or signature, as the case may be, of any such court, judge, magistrate or other officer or person mentioned in, or appended or subscribed to, any such affidavit; and
(b) the authority of such court. judge. magistrate or other officer or person to administer oaths.
112. An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered. or before his legal practitioner, or before a partner or clerk of his legal practitioner.
Affidavit 1101 1(, be sworn before certain persons
113. The court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if the COU11 is satisfied that it has been sworn before a person duly authorised.
1\ lfidnvit dcfccuvc ill form.
114. A defective or erroneous affidavit may be amended and re-sworn by leave of the court. on such terms as to time. costs or otherwise as seem reasonable.
Amendment and rc- swearing 0[" affidavu.
115. (1) Every affidavit used in the court shall contain only a statement of lucts and ('(In;~·lll~(;[-~dlld;.',i:, circumstances to which the witness deposes. either of his own personal knowledge or Irorn information which he believes to be true.
(7) An affidavit shall not contain extraneous matter. by way of objection. prayer or legaJ argument or conclusion.
(J) When a person deposes to his belief in all)' matter of fact, and his belief is derived from any source other than his own personal knowledge. he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person, the name of his informant shall be stated. and reasonable particulars shall be given respecting the infonnant, and the time, place and circumstance of the information.
) 16. When there are before a court affidavits that are irreconcilably in con flier on crucial {ollllic(in.l' alnda\ it-, facts. the court shall Ior the purpose of' resolving the conflict arising from the affidavit evidence. ask the parties to proffer oral evidence as to such facts. and shall hear any such oral evidence of the deponents of the affidavits and such other witnesses as may he called by the parties.
Provisions in Jerking Affidavit.
117, (1) Every affidavit taken in a cause or matter shall--
(a) be headed in the court and in the cause 0)' matter:
(b) state the full name, trade or profession, residence, and nationality ofthe deponent: and
(C) be in the first person, and divided into convenient paragraphs numbered consecutively.
(2) Any erasure, interlineation or alteration made before the affidavit is sworn, shall be attested by the person before whom it is taken, who shall affix his signature or initial in the margin immediately opposite to the interlineations, alteration or erasure.
(3) Where an affidavit proposed to be sworn is illegible or difficult to read, or is in the judgment of the person before whom it is taken so written as to facilitate fraudulent alteration, he may refuse to swear the deponent, and require the affidavit to be re-written in an unobjectionable manner.
(4) An affidavit when sworn shall be signed by the deponent or if he cannot write or is blind. marked by him personally with his mark in the presence of the person before whom it is taken.
l l S, Ihe person before whom an affidavit is taken shall not allow it. when sworn. to be altered in any manner without being re-sworn; and may refuse to allow an altered affidavit to be rc- sworn and require instead a fresh affidavit.
119, (1) Where the deponent is illiterate or blind the affidavit shall state that fact, and shall be accompanied with a jurat.
(2) The jurat shall
(a) be written without interlineation, alteration or erasure immediately at the foot of the affidavit, and towards the left side of the paper. and shall be signed by the person before whom it is taken:
(b) state the date of the swearing and the place where it is sworn:
(c) state that the affidavit was sworn before the person taking the same; and
(d) where the deponent is illiterate or blind, state such fact and shall state that the affidavit was read over to such illiterate or blind deponent or translated into his own language (in the case of a deponent not having sufficient knowledge of English), and
l'rovisior» as to altered aflidil\ I'
Jurat
that he appeared to understand it.
(3) Where the deponent makes a mark instead of signing. the jurat shall state that fact, and that the mark was made in the presence a f the person before whom it is taken.
(4) Where two or more persons join in making an affidavit their several names shall be written in the jurat and it shall appear by the jurat that each ofthem has been sworn to the truth of the several matters stated by him in the affidavit.
(5) If the jurat has been added and signed on an altered affidavit, the person before whom it is taker! shall add a new jurat on the affidavit being re-sworn and in the new jurat he shall mention the alteration.
120, (I) The person before whom an affidavit may be taken may take without oath the declaration or any person who ---
(a) affirms that the taking of any oath whatsoever IS, according to his rclig ious belief unlawful; or
(b) by reason of immature age or want of religious belief, ought not, in the opinion of the person taking the declaration to be admitted to make a sworn affidavit.
(2) The person taking the declaration shall record in the attestation the reason of such declaration being taken without oath.
Proof oiFacts Generallv
121. A fact is said to bc--
(a) "proved" when, after considering the matters before it. the court either believe it to exist or considers its existence so probable that a prudent man ought. in the circumstances of the particular case. to act upon the supposition that it dues exist:
(b) "disproved' when, alter considering the matters before it, the court either believes. that it does not exist or considers its non-existence so probable that a prudent man ought, in the circumstances of the particular case. to act upon the supposition that it does nut exist;
(c) "not proved" when it is neither proved nor disproved.
Facts which need nor he proved.
122. (1) No fact of which the court shall take judicial notice under this section needs to be proved.
Declaration without oath Illa~· be taken
l'roo! of Iact-,
l-aut-, 01 which COLln must take judicia! notice need not to proved
i2) The court shaJltake judicial notice of--
(a) all laws or enactments and any subsidiary legislation made LInder them having the force of law now or previously in force in any part of Nigeria;
(b) all public Acts or Laws passed or to be passed by the National Assembly or a State House of Assembly. as the case may be, ancl all subsidiary legislation made under them and all local and personal Acts or Laws directed by the National Assembly or a State House Assembly to be judicially noticed:
(c) the course of proceeding ofthe Notional Assembly and of the Houses of Assembly of the States of Nigeria;
(d) the assumption of office of the President, a State Governor or Chairman of a Local Government Council. and of any seal used by any such public officer:
(e) the seals of all the courts of Nigeria. the seals of notaries public. and all seals which any person is authorised to use by any Act of the National Assembly or other enactment having the force of law in Nigeria;
(f) the existence, title and national flag of every State or sovereign recognised by Nigeria:
(g) the divisions of time. the geographical divisions of the world, the public festivals. lusts and holidays notified in the Federal Gazette or fixed by an Act:
lil) the territories within the Commonwealth;
(i) the commencement. continuance and termination of hostilities between the Federal Republic of Nigeria anci any other State or body of persons:
0) the names of the members and officers of the court and of their deputies anJ subordinate officers and assistants. and also of all officers acting in execution of it.s process, and of all legal practitioners and other persons authorised by law to appear or act before it;
(k] the rule of the road on land or at sea:
(I) all general customs. rules and principles which have been held to have the Coree of law in any court established by or under the Constitution and all customs which have been duly certified to and recorded in any such court; and
(Ill) the course of proceeding and all rules of practice in force in any court established by or under the Constitution.
t3) In all cases in subsection (2) of this section and also on all matters of public history. literature. science or art. the court may resort for its aid to appropriate books or documents or reference.
(4) If the court is called upon by any person to take judicial notice of any fact it may refuse to do so unless and until such person produces any such book or document, as it may consider necessary to enable it to do so.
123. No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing. or which, before the healing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they arc deemed to have admitted by their pleadings:
Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
124. (I) Proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is --
(a) common knowledge in the locality in which the proceeding is being held, or generally, or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The court may acquire. in any manner it deems fit. knowledge of a fact to which subsection (11 of this section refers. and shall take such knowledge into account.
(3) The court shall give to a party to any proceeding such opportunity to make submission. and to refer to a relevant information. in relation to the acquiring or taking into account of such knowledge, as is necessary to ensure that the party is not unfairly prejudiced.
PART Vll-- ORAL EVIOENG. AND THE INSPECTION OF REAL EVIOENCFc
125. All facts. except the contents of documents, may be proved by oral evidence.
126. Subject to the provisions of Part Ill, oral evidence shall. in all cases whatever. be direct ifit refers to v- (a) a fact which could be seen, it must be the evidence of a witness who says he saw that fact:
(b) to a fact which could be heard, it must be the evidence of a witness who says he heard that fact:
(c) to a Iact which could be perceived by any other sense or in any other manner. it must be the evidence of a witness who says he perceived that fact by that sense or in
lucts admitted need t« be proved
l·a(';ISor common knowledge need not he proved
Prout ollncb b) {ora: evidence
Oral evidence 11111-"l be direct
that manner;
(d) ifit refers to an opinion or to the grounds 011 which that opinion is held. it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable.
]27. (I) Ifora! evidence refers to the existence or condition of any material thing other than a document, the court may. if it deems fit-
(a) require the production of such material thing for its inspection. or
(b) inspect an)' moveable or immovable property the inspection of which may be material to the proper determination of the question in dispute.
(2) When an inspection of property under this section is required to be held at a place outside the courtroom, the court shall eithcr->-
(a) be adjourned to the place where the subject-matter of the said inspection may be and the proceeding shall continue at that place until the court further adjourns back to its original place of sitting, or to some other place of sitting; or
(b) attend and make an inspection of the subject-matter only. evidence. if any. (..'II" what transpired there being given in court afterwards. and if) either case the defendant if an)'. shall be present.
PART VlII-- EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE
128. ()) When a judgment of a court or any other judicial or official proceeding. contract \u- any grant or other disposition or property has been reduced to the form of a document or series or documents. no evidence may be given of such judgment or proceeding or of the terms of such contract. grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act: nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence:
Provided thai any of the following, matters may be proved--
(
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