THE ADMISSIBILITY OF ILLEGAL OR IMPROPERLY OBTAINED EVIDENCE UNDER NIGERIAN LAW OF EVIDENCE

There are times when a judge or magistrate or anyone performing a judicial function will be faced with a situation whereby legality is either sacrificed for the end of justice or justice is sacrificed for the sake of legality. In such a situation I am of the sacred view that, illegality may be permissible for the end of justice. Laws or rules are meant to be means to the end of justice, the moment a law or rule will be interpreted to promote injustice such a law or rule has become outdated.

I have no doubt in my mind that the foregoing must have been the jurisprudential motivation behind the common law principle on admissibility of illegally obtained evidence. However, for the purpose of this dissertation, the exploration of the common law history of the principle will not be considered.

As a prelude, it is settled law that, the test to be applied in considering whether evidence is admissible in a civil or criminal case is whether it is relevant to the matter in issue. See Oshunride v. Akande (1996) 6 NWLR (Pt. 455) 383, (1996) 6 SCNJ 193 at 199 - 200 - per Mohammed, JSC, Dr. Ufere Torti v. Chief Chris Ukpabi & Ors. (1984) 1 S.C. 370 at 412 - 143, (1984) ANLR 185 at 195; (1984) ANLR 185 at 195; (1984) 1 SCNLR 214.

The  common law principle on admissibility of illegally obtained evidence is that, once an evidence  is relevant to the issue in contention, then it is admissible and the court should not  concern itself with  whether the evidence was legally or illegally obtained, in as long as it is relevant to the issue in contention.

OGUNBIYI, JCA, in the case of Aregbesola v. Oyinlola (2010) 7-12 KLR (Pt.286) 2681 at 2737- 2739, paras. D- B expounded on the jurisprudence of the admissibility of illegally obtained evidence by relying on the dicta of eminent Nigerian jurists of the ranks of Eso, Obaseki and Aniagolu JJSC to wit:

“In the case of Sadau & Anor v State where the apex court relied on the case of Kuruma, Son of Kamiu v The Queen, at page 203 the Privy Council described the position of the law as follows:-

“In their Lordships opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is admissible the court is not concerned with how the evidence was obtained.”

Also in Tortii v Ukpabi (1984) 1 SCNLR 214 at 236-237 and 239-240, respectively, Eso and Aniagolu JJSC stated respectively and said as follows:-

“There is no general rule of law in civil as well as in criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained; and

“Again, as was held in Kuruma v The Queen (1955) A.C. 197, the test to be applied, both in civil and criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained.”

See also Igbinovia v State (1981) 2 SC 5, 15-16 where Obaseki, JSC, quoting Lord Goddard in Kuruma v R. (1955) AC 197 PC at 24 stated and said:-

“When it is a question of admission of evidence, strictly, it is not whether the method of which it is obtained is tortuous but excusable, but whether what has been obtained is relevant to the issue being tried.”

Eso, JSC in further expatiation in same report further said:-

“There is no doubt however, that the law on the matter is as stated by Lord Diplock in Reg. v Sang 1980, AC 402 where the Learned Lord said that the Court, that is, the trial court, should not be concerned with the manner by which admissible evidence has been obtained.”

OGUNBIYI, JCA , then concluded and held  that, it is also trite law that regardless of the source of the evidence by PW1- PW66 and PW71-PW79, or even in the face of contravening the provisions of section 136(i)(ii) of the Electoral Act,2006 - which precluded officers of a political party who are not party polling agents from testifying on behalf of a party - the illegality, if any, will attach to the persons of the witnesses and not the evidence given by the witness.

“In other words, even where a witness is branded as illegal, the same will not apply to the evidence given by such a witness no matter the source of the evidence which is immaterial.”

This common law principle expounded above has now been codified in the Nigerian Evidence Act of 2011 in Sections 14 and 15 thus:

14. 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-weighed by the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained.

15. For the purposes of section 14, the matters that the court shall take into account include-

a)   the probative value of the evidence;

b)   the importance of the evidence in the proceeding;

c)   the nature of the relevant offence. cause of action or defence and the nature of the subject-matter of the proceeding;

d)    the gravity of the impropriety or contravention;

e)   whether the impropriety or contravention was deliberate or reckless.

f)     whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

g)   (g) the difficulty. if any, of obtaining the evidence without impropriety or contravention of law.

Section 14 above gives the Court the discretion to exclude improperly obtained evidence, while Section 15 states the matters the court should take into consideration in exercising it discretion under Section 14.

By Akintunde Esan,Esq.

Akintunde Esan is a litigation lawyer and chartered mediator. He is the Managing Partner at Ase Olodumare Chambers, a Lagos based dispute resolution law firm.