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become outdated.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.
