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CRIMINAL EVIDENCE IN NIGERIA. 2ND EDITION BY JIDE BODEDE.
WITH FOREWORD BY BODE RHODES-VIVOUR JSC CFR
SCHEME OF THE BOOK
1. The book contains twelve chapters. Chapter one on the admissibility of evidence deals with the nature of evidence which can prove the existence or non-existence of facts including hearsay and improperly obtained evidence. Chapter two on the burden of proof deals with the responsibility to produce evidence to prove facts. Chapter three on witnesses and chapter four on the corroboration of witnesses both deal with the persons who can present evidence, the restrictions on the presentation of evidence. Chapter five, deals with the trial rights of defendants and the defence alternatives. Chapter six, deals with the exclusion of confessions on the grounds of oppression or unreliablity. Chapter seven is about the admissibility of evidence of visual identification and identification parades. Chapter eight, is about proof of offences by circumstantial evidence. Chapter nine, deals with the uses and admissibility of expert opinion. Chapter ten on exhibits deals with the production and admissibility of documents and computer generated evidence. Chapter eleven, is about evaluation of evidence and the role of trial judges. Finally, chapter twelve on appeals deals with the attitude of appellate courts to the findings of trial courts and the wrongful admissibility of evidence.
NEW PROVISIONS AND AMENDMENTS
2. A few observations must be made about the terminology of the new Evidence Act 2011. The new Act uses the terms admissible or inadmissible rather than relevant or irrelevant used in the repealed Act. Also the term defendant is used in the new Act rather than accused used in the repealed Act. The structure and arrangement of the new Act is the same as the repealed Act but the introduction of several new provisions has led to the renumbering of sections.
The new Evidence Act introduces several major changes worthy of note. The first and probably the most important, is the inclusion of new provisions on computer generated evidence and the admissibility of statements made by computers. Those provisions can be found in sections 84 and 34 of the Act. Section 84(1) of the Evidence Act states that, “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.” The vexed question of whether or not the provisions of the repealed Act could be used to admit statements made by computers has finally been laid to rest. In addition, electronic signatures are now admissible for the proof of execution of documents. Section 93(2) of the Evidence Act provides that, “where a rule of evidence requires a signature, or provides for certain consequences if a document is not signed; an electronic signature satisfies that rule of law or avoids those consequences.” The meaning of documents in section 258 of the Act has been expanded and now includes three new categories. In addition to; (i) books, maps, plans, graphs, drawings, photographs and any matter expressed or described upon any substance by means of letters, figures or marks; documents also include; (ii) any disc, tape, sound track or other device in which sounds or other data are stored; or (ii) any film, microfilm, negative, tape or other device in which visual images are stored; or (iii) any device by means of which information is recorded, stored or retrievable including computer output.
Another major change is the inclusion of new provisions on the judicial discretion to exclude improperly obtained evidence found in sections 14 and 15 of the Act. Section 14 of the Evidence Act states that, “Evidence obtained – (a) improperly or in contravention of a law; or (b) in consequence of an impropriety or of a contravention of a law, shall be admissible unless the court is of the opinion that the desirability of admitting the evidence is out-weighted by the undesirability of admitting the evidence that has been obtained in the manner in which the evidence was obtained.” There is now domestic statutory authority for the exclusion of unlawfully obtained evidence which may be unfair or prejudicial to the defendant.
One other major change is the radical amendment to the provisions on the admissibility of confessional statements contained in section 29 of the Evidence Act. The new Act has abolished the test of voluntariness and replaced it with the two tests of oppression or unreliability. By virtue of the provisions of section 29 of the Act, any confession obtained by oppression of the defendant, or made in consequence of anything said or done to the defendant which was likely to render the confession unreliable, is inadmissible.
Another major change is the absence of provisions on corroboration of sexual offences. The provisions of section 179(5) of the repealed Act have been removed and there is no longer any statutory requirement of corroboration for conviction for any sexual offences. Still on sexual offences, section 234 of the Evidence Act 2011 replaces the former section 211 of the repealed Act and states that any questions about the previous sexual conduct of the complainant are now improper. There are also major changes to the requirement of corroboration of the evidence of children. Section 209(2) of the Evidence Act 2011 states that, “A child who has attained the age of 14 years shall, subject to sections 175 and 208 of this Act give sworn evidence in all cases.” Therefore, the evidence of children aged 14 years and above does not require corroboration. The new Act contains the definition of an accomplice and section 198(2) of the Act states that, “In this section and section 199 of this Act, an accomplice is any person who pursuant to section 7 of the Criminal Code may be deemed to have taken part in committing the offence as the defendant or is an accessory after the fact to the offence or is a receiver of stolen goods.”
A further change is the inclusion of provisions on hearsay evidence contained in sections 37 and 38 of the Evidence Act 2011. The prohibition against hearsay evidence has always been part of our law of evidence but the word hearsay is used and defined for the first time in the Evidence Act. Section 37 of the Act states that, “Hearsay means a statement – (a) oral or written made otherwise than by a witness in a proceedings; 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.” The scope of the rule against hearsay evidence in Nigeria is now clearly defined. The exceptions to the hearsay rule can be found in sections 39 to 56 of the new Act. One other change concerns the admissibility of statements made in documents and the scope of documentary hearsay evidence. Section 83 of the Evidence Act 2011 is a replica of section 90 of the repealed Act, except that the provision now applies to all proceedings, whether civil or criminal.
Another change can be found in section 137 of the Evidence Act 2011. The standard of proof for defendants in criminal trials is now codified and is discharged on the balance of probabilities in cases where the law places the burden of proof of any fact on the defendant. Another change is the applicability of exclusionary rules of evidence other than those contained in the Evidence Act. Formerly, evidence could not be excluded except by the provisions of the Evidence Act but section 2 of the new Act now permits evidence to be excluded by any legislation validly in force in Nigeria.
Another change is that the power of trial Judges to ask questions of witnesses has been amended. Section 223 of the repealed Act gave trial Judges the power to ask questions, “in order to discover or obtain proper proof of relevant facts.” That provision has been replaced by section 246 of the Evidence Act 2011 which now gives trial Judges the power to ask questions only, “in order to clear up ambiguities or to clarify points which have been left obscure in the evidence given by any witness.”
One notable change is not contained in the new Evidence Act but affects public interest immunity and the disclosure of evidence. Section 22 of the Freedom of Information Act 2011 states that, “Notwithstanding anything contrary contained in the Evidence Act, or any regulation made under it, the Court may, in the course of any proceeding before it arising from an application under section 20 of this Act, examine any information to which this Act applies, that is under the control of any public institution, and no such information shall be withheld from the Court on any ground.”
