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to the end of justice, the moment a law or rule will be interpreted to promote injustice such a law or rule has become outdated.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.

ADMISSIBILITY OF STATEMENTS IN DOCUMENTS PRODUCED BY COMPUTERS

1.0        INTRODUCTION:

One of the new provisions included in the Evidence Act of 2011 to update the law of evidence in Nigeria to the twenty-first century and bring it to terms with the computer generation is Section 84 and 258 (1) of the Act. These sections define what a “computer” is in the jurisprudence of evidence and expanded the scope of the definition of a document.

2.0        DEFINITION OF A COMPUTER:

Section 258 (1) of the 2011 Evidence Act, defines a computer as

“any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process;”

3.0        DEFINITION OF A DOCUMENT:

Section 258 (1) of the Act, expanded the scope of the definition of a document to include:

(a)     books, maps, plans, graphs, drawings, photographs, and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter;

(b)     any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it, and

(c)     any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and

(d)     any device by means of which information is recorded, stored or

retrievable including computer output:

              (Emphasis supplied)

Similarly, Section 258 (1) of the 2011 Evidence Act, unlike the old Act defines a "Copy of a Document" to include:

(a)     in the case of a document falling within paragraph (b) but not (c) of the definition of "document" in this subsection, a transcript of the sounds or other data embodied in it;

(b)     in the case of a document falling within paragraph (b) but not (c) of that definition, a reproduction or still reproduction of the image or images embodied in it whether enlarged or not;

(c)     in the case of a document falling within both those paragraphs, such a transcript together with such a still reproduction; and

(d)     in the case of a document not falling within the said paragraph (c) of which a visual image is embodied in a document falling within that paragraph, a reproduction of that image, whether enlarged on not, and any reference to a copy of the material part of a document shall be construed accordingly;

4.0        ADMISSIBILITY OF A STATEMENT CONTAINED IN A DOCUMENT PRODUCED BY A COMPUTER:

Section 84 expressly permits the admissibility of a statement contained in a document produced by a computer once the four conditions precedent for it admissibility stated in Section 84 (2) of the Evidence Act of 2011 are met.

These four conditions precedent are :

(a)      that the document containing the statement was produced by the computer during a period over which the computer was used regularly to 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;

 

(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 or 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 or is derived from information supplied to the computer in the ordinary course of those activities.

These four conditions precedent for admissibility of a statement contained in a document produced by a computer were considered by the Supreme Court in the recent case of   Dr. Imoro Kubor & Anor. v. Hon Seriake Henry Dickson & Ors. (2012) LPELR-SC.369/2012, where the eminent jurist, Onnoghen, J.S.C  expounded  that, the above conditions precedent were the pre-conditions laid down by the law  and consequently,  held that, the  two computer generated documents in issue were not admissible in evidence on the ground that, the said four conditions precedent were not satisfied by the Appellant.

Below is the dictum of His Lordship at pages 48-50, paras. F-E of the Report cited:

"Granted, for the purpose of argument, that Exhibits "D" and "L" being computer generated documents or e-documents down loaded from the internet are not public documents whose secondary evidence are admissible only by certified true copies then it means that their admissibility is governed by the provisions of section 84 of the Evidence Act, 2011. Section 84 (1) provides thus: "(i) In any proceedings, 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 condition in sub-section (2) of this section is satisfied in relation to the Statement and the computer in question. The conditions are:- (a) that the documents containing the statement was produced by the computer during a period over which the computer was used regularly to store or process the information for the purpose of any activities regularly carried on over that period, whether for profit or not, by anybody whether corporate or not or by any individual; (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 or was out of operation during that point or 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 or is derived from information supplied to the computer in the ordinary course of those activities. There is no evidence on record to show that appellants in tendering Exhibits "D" and "L" satisfied any of the above conditions. In fact they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was no opportunity to lay the necessary foundations for their admission as e-documents under Section 84 of the Evidence Act, 2011. No wonder therefore that the lower court held, at page 838 of the record thus:- "A party that seeks to tender in evidence a computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under Section 84(2) of the Evidence Act, 2011. I agree entirely with the above conclusion. Since appellants never fulfilled the pre-conditions laid down by law, Exhibits “D" and “L” were inadmissible as computer generated evidence/documents."

 [Underlining supplied]

Be that as it may, Section 84 (4) of the Act provides that:

“    In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate —

(a) identifying the document containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that document as may be appropriate  for the purpose of showing that the document was produced by a computer.

(i)  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 of the 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.”

In the case of Kubor & Anor. v. Dickson & Ors. (supra) the issue of the certificate stated in Section 84 (4) was not an issue rather His Lordship referred to the failure of the Appellant to lay the  necessary foundation for the admission of  e-documents under Section 84 of the Evidence Act .

5.0        CONCLUSION:

It is submitted that, in the absence of the certificate referred to in Section 84(4), if a witness is a person occupying a responsible position in relation to the operation of the computer by which a document was generated such a witness may be led in evidence to lay the necessary foundation of the particulars required to be in the certificate.

By Akintunde Esan, Solicitor, Advocate and Chartered Mediator. Senior Partner, Ase Olodumare Chambers, a Lagos based dispute resolution law firm. 

TENDERING OF A DOCUMENT UNDER CROSS-EXAMINATION

The admissibility of a document under cross-examination is completely permissible and unimpeachable if the purpose is to tender a previous statement made in writing by a party to the proceeding or witness in order to contradict or discredit his evidence on oath before the Court. This was the decision of the Supreme Court in the case of Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt. 453) 148 at 169, Para. H, per Iguh:

“…..the admission in evidence, under cross-examination, of Exhibit A, A1 by the trial court was completely permissible and unimpeachable as a statement previously made in writing by the plaintiff to contradict or discredit his evidence on oath before the court”

THE RELEVANT PROVISIONS OF THE EVIDENCE ACT, 2011:

The relevant provisions of the Evidence Act are Sections 199 (now deleted), 209 (now Section 232) and 210 (c) (now Section 233(c))

The deleted Section 199 which was probably deleted because it was identical with S.209 of the old Evidence Act provided that:

“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in questions in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

Section 209 (now Section 232 under 2011 Evidence Act) provides:

A witness may be cross-examined as to previous statement made by him in writing relative to the subject-matter of the trial without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him:

Provided always that it shall be competent for the court at any time during the trial, to require the production of the writing for its inspection, and the court may thereupon make use of it for purposes of the trial, as it shall think fit.”

Section 210 (now Section 233 under 2011 Evidence Act) provides:

The credit of witness may be impeached in the following ways by any party other than the party calling him or with the consent of the court by the party who calls him-

(a)            …………………………………………………….

(b)            …………………………………………………….

(c)            By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.”(All Italics supplied for emphasis).

In the said case of Ipinlaiye II vs. Olukotun (1996) 6 NWLR (Pt. 453) 148, Iguh, JSC who delivered the leading judgment set out the facts of the case at page 162 to wit:

“In the Ekiti Judicial Division of the High Court of Justice, Ondo State, the plaintiff, who is now appellant, for himself and on behalf of the entire Igasi community instituted an action against the defendant, now respondent, for himself and on behalf of the entire Ahan community, claiming as follows-

"(a) Declaration of title to a piece or parcel of land situate, lying and being at ULOGO FARMLAND in IGASI-AKOKO Division.

(b) N600.00 general damages for trespass committed by the defendants and their agents on the said piece of land.

(c) An injunction restraining the defendants and/or their agents from committing further acts of trespass on the said piece of land." 

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

 At the subsequent trial, both parties testified on their own behalf and called witnesses. The learned trial Judge, Ogundare, J. as he then was, at the conclusion of the addresses of learned counsel for the parties inspected the land in dispute in the presence of the parties and their counsel. 

The contest over the land in dispute is between the two communities of Igasi in Akoko Division and Ahan in Omuo-Ekiti Division, both of Ondo State. Both parties, for their root of title, relied on traditional evidence and claimed to be the original owners of the land in dispute from time immemorial. Each side claimed that his ancestor was the first person to settle on the land and that they had since been exercising various acts of ownership and possession thereon without let or hindrance from any quarters. Both parties also claimed to have granted parts of the land in dispute to the other party on payment of rent. These claims were denied severally by each of the parties. Of significance, however, is the letter, Exhibit A, which admittedly was written by the plaintiff to the defendant. Its contents, inter alia, are acknowledgement by the plaintiff that members of his community were farming on the land in dispute which belonged to the defendant. This letter, dated the 10th September, 1972, was written in Yoruba language and was tendered with its English translation, without objection, as Exhibit A, A1. It was tendered during the cross-examination of the plaintiff for the purpose of discrediting his entire testimony.”

At the conclusion of hearing, the learned trial Judge after an exhaustive review of the evidence on the 7th day of July, 1978 found for the defendant and dismissed the plaintiff's claims in their entirety.

Dissatisfied with this decision of the trial court, the plaintiff lodged an appeal against the same to the Court of Appeal, Benin Division. The said Court of Appeal, in a unanimous judgment on the 4th day of July, 1988 dismissed the appeal and affirmed the decision of the trial court.

Aggrieved by this decision of the Court of Appeal, the plaintiff has further appealed to this court.” 

The learned Justice of the Supreme Court in making his pronouncement at page 169, paras. C-H, observed as follows:

“Still on the admissibility of Exhibit A, A1, attention may further be drawn to sections 199, 209 and 210 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 which provide as follows-

“199. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in questions in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

“209. A witness may be cross-examined as to previous statement made by him in writing relative to the subject-matter of the trial without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him:

Provided always that it shall be competent for the court at any time during the trial, to require the production of the writing for its inspection, and the court may thereupon make use of it for purposes of the trial, as it shall think fit.”

“210. The credit of witness may be impeached in the following ways by any party other than the party calling him or with the consent of the court by the party who calls him-

(d)           …………………………………………………….

(e)            …………………………………………………….

(f)             By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.”(All Italics supplied for emphasis).

A close study of the above sections of the Evidence Act clearly discloses that the admission in evidence, under cross-examination, of Exhibit A, A1 by the trial court was completely permissible and unimpeachable as a statement previously made in writing by the plaintiff to contradict or discredit his evidence on oath before the court. In my view, it is beyond question that in so far as the document was to discredit the evidence of the appellant that he did not write a letter to the Alahan in 1972 and to impeach his claim of ownership of the land in dispute, it was clearly admissible in evidence and was properly so admitted.”   

    RELEVANT PRINCIPLES:

·       A Counsel cannot just tender a document and submit that it is aimed at contradicting a witness who is testifying on Oath. Contradiction with the use of such document can only be done through cross-examination. Ekang vs. State (2001) FWLR (Pt.68) 1123 (CA) 71 NWLR (Pt.723) 1 at 25, C-G.

·  A document cannot be admitted in evidence for the purpose of contradicting a witness – by merely producing the document or making reference to it by Counsel without any cross-examination of the witness as to credit. Edoho vs. State (2004) 5 NWLR (Pt865) 17 (CA).

·       Although, it is permissible to tender a document solely to contradict the contents of another document in evidence, it is not enough for Counsel tendering it to just tender the document without making the witness through whom it has been tendered to pin – point the area of conflict to the Court. Ikenna vs. Bosah (1997) 3 NWLR (Pt.494) 439 (CA).

·        PROPER/NECESSARY FOUNDATION

The Evidence Act gives an option to the cross-examiner. He may cross-examine the witness on the writing and if he is satisfied with the answer given by the witness or if he does not intend to pursue the matter further, he is not required to show the writing to the witness. But if the cross-examiner intends to contradict the witness by the writing, then:

a.  He must show the writing to the witness and;

b.   Call his attention to those parts of the writings which are to be used for the purpose of contradicting the witness.

It is only after these conditions have been complied with that the writing can be admitted in evidence. Ajide vs. Kelani (1985) 3 NWLR (Pt.12) 248 at 260 – 261, paras. H-A.

By Akintunde Esan,Solicitor,Advocate and Chartered Mediator.
He is the senior partner at Ase Olodumare Chambers,a Lagos based dispute resolution law firm.