It is necessary to note that in some Courts in the Country, the Evidence Act does not apply. In some other Courts the Act can be departed from in deserving instances. Why do we mention this at all? If as a lawyer, you are in a Court that does not apply the Evidence Act, it would be best to know so and use this as a basis to react or respond to any objections raised based on the provisions of the Evidence Act.
Also, to borrow from the words of Folabi Kuti SAN[1]; “the ‘exclusionary’ rules of Evidence have operated as a narrow gate through which pieces of evidence are selectively shut out, save for those which can satisfy its rigorous requirements”. Transposing the Learned Silk’s words into a practical instance, it should not be surprising to discover that many cases are won or lost because of crucial documents or pieces of evidence that are thrown out for failure to comply with the strict provisions of the Evidence Act. Many times, and especially when it has to do with documentary evidence, the issue is not that the documents do not exist, the problem rather is that the document was not tendered in its admissible form. This failure to tender a document in its admissible form sometimes gets the document marked as “rejected” by the Court with the implication that the document is excluded from being considered by the Court when delivering its judgment. In Courts whose proceedings are not bound by the Act, clearly a more liberal approach is adopted when receiving evidence from the litigating parties. Also, in proceedings where the Act can be departed from, a document that may not have found its way into evidence through a strict application of the Act, would clearly be available for use by the Court after being admitted in evidence.
Section 256(1)(c) of the Evidence Act 2011 is relevant to the issue under discuss. The Section states as follows –
Section 256(1) This Act shall apply to all judicial proceeding in or before any Court established in the Federal Republic of Nigeria but it shall not apply to –
- A proceeding before an arbitrator
- A field general Court martial; or
- Judicial proceeding in any civil cause or matter in or before any Sharia Court of Appeal, Customary Court of Appeal, Area Court or Customary Court UNLESS any authority empowered to do so under the Constitution, by order published in the Gazette confers upon any or all Sharia Courts of Appeal, Customary Courts of Appeal, Area Courts or Customary Courts in the Federal Capital Territory, Abuja or a State, as the case may be, power to enforce any of (or) all the provisions of this Act.
- In judicial proceeding in any Criminal cause or matter, in or before an Area Court, the Court shall be guided by the provisions of this Act and in accordance with the provisions of the Criminal Procedure Code Law.
- Notwithstanding anything in this Section, an Area Court shall, in judicial proceeding in any criminal cause or matter be bound by the provisions of Sections 134 to 140.
Application of the Evidence Act to Customary Courts or Area Courts #
The Evidence Act does not generally apply to proceedings in Customary and Area Courts. In other words, the proceedings in those Courts are not conducted with strict conformity to the Act. It is sufficient that the proceedings are conducted fairly and in accordance with the applicable rules of the Court – Odofin v Oni (2001) LPELR 2226 SC. It is also sufficient that the Court’s decision is based on common sense and good reason – OGUANUHU & ORS v. CHIEGBOKA (2013) LPELR-19980(SC). In addition, the strict rules of pleadings do not apply to proceedings conducted at the Customary Court – NWOKEDI & ANOR v. NWOSU (2018) LPELR-44721(CA).
However, there is an exception to the position on the applicability of the Evidence Act in Customary/Area Courts stated above. Thus, by the provision of Section 251(c), the appropriate authority as empowered by the Constitution may by an order published in a gazette confer on the Courts sufficient power to apply all or some of the provisions of the Act. Also, by the clear provisions of Section 256(2) and (3) of the Act, the Act can (or may) apply in respect of criminal matters or proceedings conducted before an Area Court[2]. By Subsection (2), the Act is to guide the Court and by Subsection 3, the particular provisions of Sections 134 to 140 of the Act are to mandatorily apply.
It should also be noted that the apex Court has held that even the regular Courts like the High Court, the Court of Appeal and even the apex Court itself, to which the Evidence Act ordinarily applies, cannot apply the Evidence Act when hearing civil appeals from Customary/Area Courts. That was made clear by the Supreme Court in the cases of Ogunnaike v. Ojayemi (1987) 1 NWLR (PT. 53) 760; (1988) 1 NSCC 332 @ 336 lines 30 – 45; (1987) 3 S.C. 213; (1987) LPELR- 2345(SC) P. 29 paras F-G; Latunde v. Lajinfin (1989) 3 NWLR (PT 108) 177 @ 186, (1989) LPELR – 1760 (SC) P.13 & 14 and Kuusu v. Udom (1990) 1 NWLR (PT 127) 421; (1990) LPELR -1725. The rationale for disallowing an appellate Court from relying on the provisions of the Evidence Act when hearing appeals from Area and Customary Courts does not seem far-fetched: one cannot on appeal rely on Laws that are not available to such Courts to judge their correctness. An appeal is not inception of a new case but continuation of the case at the lower Court (Ajide v. Kelani (1985) 3 NWLR (PT. 12) 248 (S.C.) accordingly, the rules cannot change on appeal – TONGDING v. KAKSHAK (2018) LPELR-46169(CA) Pp 10 – 15 Paras E – B.
The Supreme Court decision in Peter Odofin v Jimoli Oni (2001) LPELR-2226(SC) is most relevant to this discuss.
Relevant Dictum in Odofin v Oni
“…it is important to stress that superior Courts, particularly the apex Court, have continued to stress that greater latitude and broader interpretations must be accorded to decisions of Customary Courts as it is trite that the proceedings in the Customary Courts are not subject to the application of the Evidence Act. It is important that superior appellate Courts in relation to matters relating to Customary Courts should focus their attention to the substance of the judgments or decisions in those Courts rather than the form. This is so because Customary Courts – be the Area Courts or whatever name they are christened in our various judicial jurisdictions are generally presided over by laymen without even rudimentary exposure to legal principles. An appellate Court should in all circumstances strive to get to the bottom of the decision of a Customary Court. This can only be achieved by considering the import of a decision of a Customary Court not in fragments or in isolation of excerpts thereof but must be read harmoniously as a whole in order to capture its import. In other words, when greater latitude is accorded to the interpretation of the decisions of Customary Courts, it will be sufficient if such decisions are seen to accord with the view of persons of good common sense and reason completely devoid of legalistic encrustments. This, to my mind, is what can be distilled from a long line of judicial authorities on the limit to which superior appellate Courts are cautioned to go in any attempt to decipher the true meaning of decisions of Customary Courts presided over by non-legal practitioners. It is only by heeding such caution that the painstaking adjudicatory functions of Customary Courts as they relate to their decisions can be meaningfully comprehended and harnessed in the attainment of substantial justice in contradistinction to undue reliance on technicalities. See Ikpang v. Edoho (1978) 6-7 SC. 221; Ajagunjeun & Ors v. Saba Osho of Yeku Village & Ors (1977) 5 SC. 89, Madubuonwu v. Nnalue (1999) 11 NWLR (Pt. 628) 673, Ofozo Onyido v. Goddy Ajembo (1991) 4 NWLR(Pt. 184) 203 and Okolie v. Onyejuluwa (2000) 10 NWLR (Pt. 676) 450.”
The following cases are also relevant on this point/issue – DAYYA & ORS v. DAYYA & ORS (2021) LPELR-56576(CA), FENU & ORS v. BELLO & ORS (2019) LPELR-47693(CA), RE: YARO IZANG (2021) LPELR-55159(CA).
Application of the Evidence Act to Matters at the National Industrial Court #
Another prominent example of an instance where the provisions of the Evidence Act may not apply to judicial proceedings in a Court of Law is the NICN – National Industrial Court of Nigeria. By Section 12(2) of the NICN Act, the Court is empowered to depart from the Evidence Act when the interest of justice is at stake.
The case of Mr. Victor Adegboye v United Bank for Africa, Appeal No. CA/IL/20/2021, delivered on April 14, 2022 must be referred to on this issue. There is also another Court of Appeal authority that touches on the issue herein – SEC v Abilo Uboboso unreported Suit No. CA/A/388/2013; judgment delivered on 21st December 2016. It has been argued that Uboboso’s case is at variance with the decision in Adegboye’s case[3]. Since Adegboye’s case is however the later in time (at the time of this writing in 2022), it would take precedence over Uboboso’s case.
[1] https://guardian.ng/features/propriety-of-dispensing-with-evidence-act-in-judicial-proceedings-a-review-of-appeal-courts-recent-decision-in-mr-victor-adegboye-v-united-bank-for-africa/
[2] The operative clause in subsection 2 is however that the Court is to be guided by the provisions of the Act. This use of words doesn’t seem to imply a mandatory obligation to apply the provisions of the Act in criminal proceedings. This is most likely why Subsection 3 was included.
[3] https://guardian.ng/features/propriety-of-dispensing-with-evidence-act-in-judicial-proceedings-a-review-of-appeal-courts-recent-decision-in-mr-victor-adegboye-v-united-bank-for-africa/
