Law of Evidence
December 18, 2019
18 Dec 2019
Law of Evidence
December 18, 2019
Competency and Compellability of Witnesses
In a trial, witnesses
are used to prove facts. A witness is competent if he possesses the
intellectual ability to testify to facts within his personal knowledge. If not,
he is not allowed to give evidence. Even where a witness is competent, there is
also the issue of getting the witness to come and testify in court. The process
of compelling a competent witness to testify in court is referred to as
compellability.
Adah on competency and
compellability said:
…. A witness is said to be competent to give evidence
if his testimony I admissible. He is compellable if he can be forced or obliged
to go into the witness box and if he refuses to do so he can be committed to
prison for contempt of court. It follows from this that every compellable
witness is a competent witness. Conversely, it is not every competent wetness
that is compellable.
THE COMPETENCY RULE
It is only those that
are competent that can give evidence and if incompetent witness is allowed to
testify, any conviction thereby or any verdict may be quashed on appeal. As
in R V. Mount, three men were convicted of shop breaking. The
wife of one of them had given evidence for the prosecution and this
necessitated the quashing of all three, as shop breaking was not an exempted
offence.
This is provided for in
section 175 of the Evidence Act 2011:
All person shall be competent to testify unless
the court considers that they are prevented from understanding the question put
to them or from giving rational answers to these questions by reason of tender
years, extreme old age, disease whether of the body or of mind or any other
cause of same kind.
Section 175(1) of the
Act as above, contains what may be regarded as a qualification and
disqualification rule. It qualifies everyone to testify except where the witness
disqualifies himself or herself. Section 175(2) provides that a person of
unsound mind is not incompetent to testify unless he is prevented by his mental
ingenuity from understanding the question put to him andgiving rational answer
to them. For instance, in Elabanjo V. Tijani, the issue was whether
a counsel was competent to give evidence and the Court of Appeal was of the
view that in view of some decided cases, a lawyer was incompetent to
testify.However, on appeal, the Supreme Court held that the determinant of
competency in section 155 of the Evidence Act (now section 175 of the Evidence
Act 2011)and that there is nothing under the provision that disqualifies a
counsel from giving evidence on behalf of his client.
The categories provided
by the Act are as follows.
TESTIMONY OF A CHILD
Sometimes, the principal
witness to a fact in issue may be a little child. The question is whether such
a child is competent to be a witness. In most domestic crimes, and cases of
defilement, the only witness available may be children.If they are not
competent, then relevant facts cannot be proved.This aspect I however,
compounded by the fact that a child may be easily influenced by others and
their power of observation may be unreliable.
However, the law is a
little bit liberal when it comes to evidence of a child. Section 175 is to the
effect that every child is competent to give evidence if they can understand
the question put to them or give rational answers to those questions. Section
209(1) provides that a child who has not attained the age of fourteen years
shall not give a sworn evidence but may give an un-sworn evidence if he is
posed of sufficient intelligence to justify the reception of his evidence and
understands the duty of speaking the truth. It states:
In any proceeding in which a child who has not
attained the age of fourteen years is tendered as a witness, such child shall
give evidence other than on oath or affirmation, if in the opinion of the
court, he is possessed of sufficient intelligence to justify the reception of
his evidence and understands the duty of speaking the truth.
That is to say, a child
who is below the age of fourteen is only competent to give un-sworn evidence if
in the opinion of the court he is possessed of sufficient intelligence to
justify the reception of his/her evidence and understands the duty of speaking
the truth. To consider whether a child below the age of fourteen is “possessed
of sufficient intelligence”, the court will consider whether, in line with
section 175 of the Act, he understands questions put to him and is able to give
rational answers to those questions.
In the case
of State V. Una, Oputa J(as he then was) allowed a girl of seven
years to testify because he found her to be intelligent enough. Here, the
accused person was charged for defiling a girl of four years old sometime in
1964. At the time the victim was giving evidence in court, in 1967, she was
already seven years old. Her evidence was corroborated by the evidence of her
mother and the deposition of a medical doctor taken at a preliminary inquiry
but admitted under section 38 of the Evidence Act. The accused was convicted on
the strength of the evidence before the court even though the trial judge
called for a lot of caution in believing the evidence of the victim. The court
stated that her evidence would have been disallowed if she was testifying in
1964 when the offence was committed and was just about four years old.
In Sambo V.
State the supreme court held that mere observation on the record that
a child knows the nature of an oath but does not know the consequences of
telling a lie is not sufficient compliance with the required procedure and that
failure to carry out these two tests is not a mere irregularity, but a
fundamental breach which went to the root of the conviction of the appellant
for rape.
OLD PERSONS
As provided by section
175, every old person is therefore presumed to be competent except where they
disqualify themselves as a result of their senility from understanding the
questions put to them or from giving rational answers to those questions.
Section 209 does not apply to old persons, so if they can satisfy the test
under section 175, they can give sworn evidence. If an old person id unable to
understand the question put to him or could not give rational answers to those
questions because the memory is faded, then he/she cannot give evidence at
all.
INSANE PERSONS
Insane persons are also
competent to give evidence if they are not prevented as a result of their
mental impairment from understanding questions put to them or give rational
answers to those questions. This is provided for in section 175. The competency
of an insane person will have to be investigated in an open court before the
testimony is received. Expert evidence will also be called if there
is any doubt.
In R V. Bellamy,
the trial judge had examined a rape victim of 33 years who had a mental age of
10 and when she was asked if she lied what would happen to her and she said she
would be put away. She was allowed to give sworn evidence and the Court of
Appeal held the procedure.
Also in R V.
Hill, the prosecution wished to call an inmate of a lunatic asylum. One of
the attendants was called first and gave evidence that the man in question had
the delusion that spirits continually conversed with him but added that he
believed that inmate was capable of giving an account of anything that happened
before his eyes. The witness was allowed to testify because the court found
that he had clear understanding of the obligation of an oath and was rational
on all subjects except his particular delusion.
Where a witness is
incompetent because he is insane but has made a written statement, such
statement may be admissible under section 83 of the Evidence Act because he is
unfit to attend the trial. In the case of R V. Setz-Dampey, a
statement made by an insane person was allowed to be proved at a trial by
another witness because the witness was unfit to attend.
DEAF AND DUMB PERSONS
A witness is not said to
be incompetent only because he is deaf or dumb. Section 176 of the Evidence Act
allows such persons to give evidence in court in any manner he can make his or
her evidence intelligible.
The witness can give
evidence in any manner the court can understand him. This may be through
writing where he is literate or by sign. Thus it was held in R
V. Ruston, that a witness though deaf and dumb could be sworn and give
evidence on an indictment of felony if intelligence can be conveyed to and
received from him by means of the sign language. However, such evidence must be
given in open court and regardless of the manner it was given shall be regarded
as oral evidence. This position is supported by the case of R V.
Whitehead, where on a prosecution of rape, it appeared that prosecutrix was
deaf and dumb and her father who was sworn to interpret her evidence said that
he believes her to be ignorant of the nature of an oath. An expert
however came and from his report to the court, prosecutrix was
sworn and her evidence taken down as interpreted by the expert. In the course
of examination, it became it became ostensible that she did not understand
questions and that her answers could not be relied upon. The judge directed her
to stand out and struck her evidence from the case. It was held that although prosecutrix had
been sworn, the judge acted rightly by striking out and withdrawing her
evidence from the jury. The fact that the incompetency was discovered during
trial was immaterial.
EVIDENCE OF AN ACCUSED
PERSON
An accused person is
initially not a competent witness to testify at his own trial. However, only in
certain cases. He is a competent witness in a criminal trial only for the
defense, but not compellable. He is not competent witness for the prosecution.
The position of an
accused person as a witness in his trial is provided for by section 180 of the
Evidence Act 2011:Every person charged with an offence shall be a competent
witness for the defense at every stage of the proceeding, whether the person so
charged is charged solely or jointly with any other person:
Provided that:
A person so charged
shall not be called as a witness in pursuance of this section except Upon
his own application.
An Accused as a Witness
for the Prosecution- Although an accuses person is not expressly prohibited
under the Evidence Act from giving evidence for the prosecution, there is also
no express provision in the Act making an accused competent for the
prosecution.The reason why an accused is not a competent witness for the
prosecution is because of the rule that an accused cannot be compelled to give
evidence at his trial. This is contained under section 36(11) of the 1999
constitution of Nigeria (as amended) which provides that "No person who is
charged for a criminal offense may be compelled to give evidence at the
trial". If an accused person is competent and compellable to give evidence
for the prosecution, this constitutional provision will be breached and the
court will annul such rule of evidence because the constitution is supreme.
In Agbachom V.
State, where the accused was charged for contempt of court on account of a
statement contained in an affidavit sworn by him in support of his application
for the transfer to another court of a civil case in which he was a defendant.
The trial Judge maintained that the statement was calculated to lower the
authority of the court and therefore amounts to a contempt of court. The
defense contended that the trail judge was not competent to try the accused for
contempt of his own court under this circumstance. The trial judge however,
overruled this objection on the ground that he was competent both under the
common law and under section 133 of the criminal Code and in order to prove the
charge, the judge put the accused person in the witness box and examined him. The
accused was convicted and he appealed to the supreme court. It was held on
appeal that the conviction was wrong, as the accused was compelled to give
evidence. An accused is not a competent witness for the prosecution against
himself. He cannot be a witness for the prosecution except against any other
accused person.
An Accused as a Witness
for the Defense: An accused
person is a competent witness for himself but must be called upon his own
application. That is to say, he is not a compellable witness. The right of an
accused to give evidence from the witness box is states in section 180 on
paragraphs (c) and (f) thus:
(c) when the only
witness to the facts of the case called by the defense is the person charged he
shall be called as a witness immediately after the close of the evidence for
the prosecution;
(f) every defendant
called as a witness in pursuance of this section shall, unless otherwise
ordered by the court, give his evidence from the witness box or other place
from which the witnesses give their evidence.
Evidence obtained
through cross-examination of an accused witness by the prosecution which
implicates a co-accused is admissible. While an accused person may be asked any
question tend to incriminate him as to the offence charged, paragraph (g) of
section 180 of the Act states that he cannot be asked any question and if asked
shall not be obliged to answer any question tending to incriminate him as to
other offences or that he is of a bad character. An accused may give unworn
evidence under section 180 (e) of the Act. An unsworn evidence of an accused
taken in that manner is evidence that the trial and it is for the court to and
it is for the court to decide what weight to attach to it.
An accused is competent
but not compellable to give evidence for a co-accused charged together.
COMPETENCY OF AN
ACCOMPLICE TO GIVE EVIDENCE
The determining factor
whether a particular witness is an accomplice or not is the fact that even if
he was not charged with the other accused he is somebody who can be charged,
tried and convicted with the accused person. An accomplice is a competent and
compellable witness for the prosecution and the defendant as
well. This is stated in section 198 (1) of the Evidence Act; an
accomplice shall be a competent witness against an accused person, and a
conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice. However, the evidence of the witness will require
statutory warning.
In Police V.
Edosaomwan, an accomplice who took part in the commission of the offence
with the accused persons but not charged was held to be a competent witness for
the prosecution. Similarly, in R V. Omisade, where the court held
that the two witnesses facing separate trials for being in illegal possession
of arms were accomplices and they were competent witnesses for the prosecution.
EVIDENCE OF SPOUSE
Initially, under the
common law, the spouses of a party to both civil and criminal proceedings were
neither competent nor compellable to give evidence in the court. However, the
Spouse of accused persons in criminal cases are now competent and compellable
for the defense and largely not for the prosecution except for certain named
offences.The accused persons spouse is only competent and compellable for the
defense but only on the application of the accused, making the spouse
incompetent for the prosecution except where the accused is charged for certain
specific offenses referred to under the criminal code or its equivalent
provisions under the Penal Code.
It was held in Hosklyn
V. Metropilitan Police Commissioner that” husband and wife are looked
upon as one flesh and that their giving of evidence against one another would
lead to implacable discord and dissension and might be the means of great inconvenience”.
Section 182 (1) of the
evidence Act provides that where a person is charged with any of the offenses
mentioned in that subsection, the spouse of the accused will be competent and
compellable witness for both the prosecution and defense without the consent of
the person charged.
CIVIL CASES
In accordance with
section 178 of the evidence Act 2011, subject to section 165 of the Act which
deals with legitimacy, the parties to a suit, and the husband or wife to any
party to a suit, in all civil proceedings shall be competent witnesses. Thus,
the plaintiff may decide to call the defendant as his witness and vice
versa.
In Obolo V.
Aluko, where the plaintiff issued a subpoena on the defendant to give
evidence for the plaintiff. The trail judge held that “a party could call his
opponent as witness and provided he is willing he is a competent witness”. He
added however, that there is no law to compel the defendant to give evidence
for the plaintiff. The supreme court held that the defendant is both competent
and compellable to testify for the plaintiff.
COMPETENCY OF COUNSEL
There is no law provided
in the evidence Act which prevents a counsel from giving evidence for is
client. However, there are reasons as to why a counsel should not serve as both
counsel and witness. They include:
1. Every litigant must feel safe when making
disclosure to his counsel.
2. That counsel must remain detached and impersonal
in his attitude to the case so that his judgement of the matter may not be
clouded by personal feelings.
This is the same whether
counsel is giving oral or affidavit evidence.
In Horn V.
Richard, a counsel swore to an affidavit on behalf of his client. It was
held that the Counsel should not have withdrawn from the case if his deposition
is considered as necessary.
On the other hand, where
counsel id the only person with the knowledge necessary to swear the affidavit,
and where the facts to which he is to swear are likely to be in dispute, then
he should, for the purpose of that application withdraw from the case and brief
other counsel. In Gachi and Others V. State, the defense counsel
gave evidence in support of an alibi on behalf of the accused person who was
acquitted. It was held that although a counsel is a competent person in law, it
is highly undesirable that he should give evidence in a case in which he is
appearing professionally. If the evidence be necessary, he should decline being
counsel.
However, in Elabanjo
V. Tijani, the plaintiff sued for damage for trespass. Plaintiff’s counsel
took out the writ of summons, settled the pleadings,filled motion for intention
injunction and then filed a motion for summons for direction.From then till the
end of the case, he ceased to act as counsel. When the actual hearing came, he
gave evidence for the plaintiff. Judgement was given for the
plaintiff. The defendant appealed to the Court of appeal where the
judgement of the trial court was overturned after the evidence of the plaintiff
was expunged on the grounds that he was not competent to give evidence. The
plaintiff then appealed to the Supreme Court and it was held, setting aside the
judgement of the Appeal Court and restoring that of the trial court, that a
counsel is competent witness on the case he is conducting on behalf of his
client and can give evidence in that case.
COMPELLABILITY
All compellable
witnesses are competent, however, not every competent witness is compellable.
If a witness is competent and compellable, then he can be served with a subpoena to
attend the court and where he fails to do so, he can be proceeded against for
contempt of court. It was stated in Ex parte Fernandez that anyone who is a
competent witness is compellable, but the court quickly added “unless he can
show some exceptions in his favour”.
Category of Persons who
are Not Compellable:
The President of a
Country, their Deputy, as well
as Governors and their deputies. The 1999 Constitution of the Federal Republic
of Nigeria (As Amended) granted immunity to these persons. This is provided in
section 308 of the 1999 constitution (as amended). This is apart from the
international immunity they are granted from other international conventions.
This was applied in the
case of Colonel Olu Rotimi and Others V. McGreggor, where a civil
case was brought against the governor of Oyo State. It was held that the name
of the Governor be struck out since no action can be brought against him in his
private capacity. He could only be sued in his official capacity. In the case
of Fawehinmi V. Inspector General of Police, it was held that a
Governor of a state enjoys immunity from prosecutions whilst occupying that
seat and no court process may be issued against him but the constitution did
not prevent the police from investigating any criminal allegations against the
governor.
Ambassadors.
Diplomats, ambassadors,
diplomatic agents of a countrysent to another country are persons that are also
not compellable. This is in consonance with Article 30 of the Vienna Convention
on Diplomatic Relations, 1961. Article 30 (1) provides that a diplomatic agent
shall enjoy immunity from the criminal jurisdiction of the receiving state. He
shall also enjoy immunity from its civil and administrative jurisdiction except
where it involves immovable property, executorships and other professional or commercial
activities carried out in his private capacity. Article 30 (2) states that a
diplomatic agent is not obliged to give evidence as a witness.
They may however, waive
this right under section 2 of the 1962 Act. Sections 3 and 4 makes similar
provisions in respect of the high Commissioners from the Commonwealth countries
as well as their families and officials.
Representatives of
International Organizations.
These are
representatives of certain international Organizations such as the United
Nations, African Union, European Union and Commonwealth.
Limited Immunity for
Bankers under section 157 of the Evidence Act.A banker or officer of a bank shall not in any
legal proceeding to which the bank is not a party be compelled produce any
bankers book or appear as witness to prove the matter, transactions and
accounts therein recorded.
An Accused Person. We have seen that an accused person cannot
be compelled to give evidence even for himself.
Spouse of an Accused
person. Spouse of an
accused person I certain cases cannot be compelled to give evidence if the
marriage between the accused and the spouse is monogamous.
A Judge or Magistrate. Judges and Magistrates are accorded some
protection under section 165 of the Evidence Act.
8 Nov 2019
Law of Evidence
November 08, 2019
The Concept of Real Evidence
Real evidence is the material object produced for the inspection of the court. Real evidences are objects which are instruments in the commission of crimes as matchet in murder case or machine for mining coinage. This is where a material object is relevant in a trial. For example, where an accursed person stabs a person to death with a knife and same was recovered by the police, the knife is the material object of the crime and must be brought to court as real evidence. Another instance of real evidence covers immoveable property, where the court may decide to inspect it in order to form a visual perception of the property. This is common to land disputes where the court decides to inspect a land which an object of dispute. In the case of Briggs v. Briggs, the respondents instituted an action against the appellant claiming E500 damages for trespass committed by the appellant on her land and a perpetual injunction. At the end of the trial, the trial judge made an order to visit the locus in quo. The trial judge gives judgments to the respondent for damages and granted the injunction sought. Aggrieved by the judgment, the appellant appeal to the Supreme Court which considered the propriety of the procedure adopted in the visit to locus in quo by the trial judge in view of the provision of section 127(2) of the Evidence Act, 2011. Nnaemeka – Agu, J. S. C.: Held, it has been settled by a long line of decided cases that, where a conflict occurs in the evidence of both parties as to the existence or non-existence of the a state of facts relating to physical object and such a conflict can be resolve by visualizing the object, the material thing, scene of the incident or property in litigation, is desirable for the court to apply its visual senses in aid of its sense of hearing. It has indeed been acknowledge by high authority that this form of evidence often referred to as real evidence, is the most satisfactory form of proof.
The section that covers real evidence is section 127 of the Evidence Act which provides thus,
If oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it deems fit
require the production of such material thing for its inspection, or
inspection any moveable or immoveable property the inspection of which may material to the proper determination of the question in dispute.
When an inspection of property under this section is required to be held at a place outside the courtroom, the court shall either:
be adjourned to the place where the subject-matter of the said inspection may be and the proceeding shall continue at that place until the court further adjourns back to its original place of sitting, or to some other place of sitting; or
attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in court afterwards, and in either case of defendant, if any, shall be present.
By the provision of section 127 of the Evidence Act, either of the parties in dispute or before the court must referred to the existence of such an object which is relevant to the determination of the suit before the court may deem it fit to inspect such material object.
In Mbele v. State, the machete used by the accused in killing the deceased was admitted in evidence as object of the crime (real evidence) to prove the crime.
From the above submission, real evidence could come in two forms. The first one is the production of material object while the second one is the visit to locus in quo. It is clear for section 127 of the Evidence Act that the first arm of real evidence is the production of the material object for the inspection of the court. Material object will involve in criminal cases the production of the object of the crime and this will be tendered in evidence.
Failure to produce such material objects may be fatal to the case of the prosecution at the trial or where such material object is not properly handled or kept in proper custody such object may be of no value at the trial as was held in the case of Ishola v. State.
Visit to locus in quo: This is another category of real evidence provided for by the provisions of section 127(1)(b) of the Evidence Act. The court has the discretion to visit the locus in quo-the location of the subject-matter of the suit before it or to the scene of crime. This is to afford the court the opportunity to view the fact in issue or some relevant fact in the trial so as to appreciate the evidence adduced by the parties before it and resolve the issue accordingly. See the case of Obi v. Mbionwa and Anyanwu v. Mbara.
In Briggs v. Briggs, the court explained that there are two procedures which the court can adopt under section 127(1)(b).
The court shall either be adjourned to the place where the subject-matter of the said inspection may be and the proceedings shall continue at the place until the court further adjourned back its original place of sittings; or
The court shall attend and make an inspective of the subject-matter only, evidence, if any of what transpired at the venue to being given in the court afterwards.
Other forms of Real Evidence include:
Appearance of person: A person’s appearance at the trial where some features of the person is necessary to establish a fact in issue or a relevant fact may also constitute real evidence. The court may also inspect a child to determine his age.
Demeanour of witnesses: This is the ability of the real judge before him. If the witness is consistent and unperturbed by cross-examination, the court may be more inclined to believed him rather than a witness who is prevaricating and contradicting himself.
Tape recording: With modern technology, there is an increasing use of tape recording in trials. Most of the time, when the court accepts a tape, it is acting on real evidence. See NBA v. Chief Gani Fawwehinmi (1989) 2 NWLR pt. 105 To 583 and INEC v. Action Congress (2009) 2 NWLR pt. 1126, 524.
Law of Evidence
November 08, 2019
The Law on Visit to Locus in quo
Visit to locus in quo is a category of real evidence. Visit to locus in quo requires the court in a certain matter to be moved to the location of the subject-matter in dispute or scene of crime. Section 127(1)(b) provide for the power of court to visit to locus in quo. The provision of the law provides that if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it deems fit inspect any moveable or improvable property the inspection of which may be material to the proper determination of the question in dispute.
The essence of the visit is to afford the court the opportunity to view the fact in issue or some relevant facts in the trial so as to appreciate the evidence adduced by the parties before it can resolve the dispute accordingly. In the case of Obi v. Mbionwu, the court held that a visit to locus in quo is at the discretion of the court and the purpose is to enable the court to appreciate the issues raised by the parties and also to resolve any ambiguity in the case of the parties. A further explanation was given by the Supreme Court in the case of Anyanwu v. Mbara, where it stated the power to visit the locus in quo in land matters derives from Section 127 of the Evidence Act 2011 and that when both parties to a land suit show respective boundaries they claimed but give necessary but conflicting evidence about the existence and location of a particular feature thereon, then the need would arise for the trial court to supplement and resolve what it heard with what it could see by visiting the locus.
However, it is not open to a party to complain that the trial judge failed to visit the locus in quo when he failed to adduce sufficient evidence to give rise to conflicting evidence on the existence and the location of a particular feature therein but expect a trial judge ta suo motu supplement the oral evidence by such an inspection.
In Briggs v. Briggs, the trial court decided to proceed to the locus in quo after the case was adjourned for judgment. The trial court decided to visit the locus in quo because from the evidence already adduced by both parties, there was a material contradiction on the issue of trespass. While the plaintiff stated that the defendant trespassed on his land by building a house on it, the defendant maintained that he did no build any house on the plaintiff’s land. Upon the court’s visit to locus in quo it found out that the defendant actually build on the plaintiff’s land. The defendant appealed against the judgment of the trial court on the ground that the trial judge recorded in judgment certain facts of which there was evidence on record and that the procedure stipulated under the now Section 127 of the Act was not followed. The Supreme Court held that all the facts recorded in the judgment were based on the evidence adduced at the trial and since no evidence was taken at the locus in quo there was no need to reconvene the court for cross-examination.
The court further held that there are two procedures which the court can adopt under section 127 of the Evidence Act when it visits a locus in quo
The court shall either be adjourned to the place where the subject-matter of the said inspection may be and the proceedings shall continue at the place until the court further adjourns back to its original place of sitting; or
The court shall attend and make an inspection of the subject-matter only, evidence if any, of what transpired at the venue to being given to court afterwards.
The court in the instant case (Briggs v. Briggs) followed the second alternative method.
In the instant case of Mallam Garba and Mallam Gabo, based on the provision of section 127 and judicial pronouncements cited above, the procedure adopted by the court on visit to locus in quo was proper. Mallam Garba does not have a good case on appeal.
5 Nov 2019
Law of Evidence
November 05, 2019
Burden and Standard of Proof
In each case, one side has the burden
of proof. Having the burden means a party must prove its case to the trier of
fact-judge or jury, whoever is weighing the evidence. The burden of proof can
shift from one side to the other during hearing or a trial depending on the
kind of case. For example, in criminal, the prosecution has the burden of
proving the defendant committed a crime. In many states, the defendant has the
burden of proving certain defences to that crime. But, particularly in criminal
cases, opposing sides can be held to different standards of proof.
The standard of proof refers to the
extent to which a party with the burden of proof has to prove its case. In
general, the higher the stakes, the higher the standard of proof. A higher
standard of proof means that, to find for the side with the burden of proof,
the trier of the fact has to be more certain that that side has proved its
case.
Meaning and nature of Burden of proof
Burden of proof is the obligation which
the law imposes on a party who desires the court to give judgment in his favour
or who will fail if no evidence is adduced whether in criminal or civil trial. In
Elemo v Omolade (1968) NMLR 359 the court observed that in discussing the
burden of proof there are two limbs that cannot be dispensed with, they include
the following:
i.
The
burden of proof as a matter of law and pleading i.e the burden as it has been
called of establishing a case whether by preponderance of evidence or beyond
reasonable doubt.
ii.
The
burden of proof in the sense of introducing evidence.
The first limb of burden of proof as canvassed by the court in
the above case is referred to as legal
burden of proof. This burden is fixed by law on a party and never shifts.
It is a burden on a party to prove his case to the satisfaction of the court,
whether by preponderance of evidence or beyond reasonable doubt. Legal burden
of proof is settled throughout the trial by the state of pleading and is settled
by law, it is allocated by rules of law and are fixed at the beginning of the
case.
The second limb of burden of proof is
not always stable as it shifts constantly more as one scale of evidence or the
other preponderate. In this sense, the onus propend
rest on the parties who will fail if no evidence at all or no more evidence
as the case may be were given on either side. It rests before evidence is gone
upon the party asserting the affirmative of the issue and itrest after evidence
is gone into upon the party against whom a tribunal at the time the question
arises will give judgment if no further evidence were adduced. The burden of
intoducing evidence is the obligation on a party to adduce evidence on a
particular fact.
We will now specifically examine burden
of proof in civil and criminal cases.
a.
Burden of proof in Civil cases: The general burden of proof is on the
party who alleges the existence of a fact in issue. Thus, the burden of proof
is usually fixed by the state of pleading and where there is any dispute about
the general burden of proof as the matter is resolved by the court as a matter
of law. Where a defendant denies the allegations in the pleadings of the
plaintiff, the general burden of proof is on the plintiff to establish the
allegation in the pleadings. Once the plaintiff has done this, the onus of
establishin the contrary facts shifts to the defendant. Note that a plaintiff’s
claim may even fail where the defendant does not defend the action if the legal
burden is not discharged. This point was analysed by the court in the case of Pickford
v Imperial Chemical Industries Plc (1998) 3 All ER 462, where the English
House of lords held that where the trial judge does not believe the evidence of
either party on an issue in dispute, the party who has the legal burden of
proof is the party who must fail. The court further pronounced on this matter
of law in the case of Oguejiofor v
Siemens Ltd (2008) 2 NWLR pt 1071, 283 the court in this case held that in
civil cases, the burden of proof is on the plaintiff to proof his case and the
burden is not removed simply because the defendant abandons his case by refusing
to any evidence in support of his defence or fails to cross-examine plaintiff’s
witnesses. It was held that the defendant bears no burden to adduce any
evidence or satisfactory evidence. It was also held that where the plaintiff
has produced evidence in support of his prima
facie will entitle him to judgment, the defendant will need to lead some
evidence to enable the court to consider on whose side the case preponderances.
b.
Burden of proof in Criminal cases: The burden of proof in criminal cases
is provided for respectively by the provisions of the Nigerian 1999
Constitution (as amended) and the Evidence Act 2011. The presumption of
innocence held in favour of the defendant in criminal cases fixes the burden on
the prosecution to prove the existence of all elements of an offence or
offences a defendant in criminal cases is charged with or the case fails. This
position was canvassed by the court in the case of Kinnami v Bornu Native Authority (1957) NRMLR where the court held
that it is not the duty of the accused to prove his innocence but it is the
duty of the accuser to prove his guilt. By virtue of this, th burden is always
on the prosecution to prove all the ingredients of the offence. The import of
this presumption held in favour of the accused is that he is not deemed to have
committed the offence until the prosecution is able to prove that the accused
person actually committed the offence.
The second provision is section 135(2)
of the Evidence Act, 2011 which provides that the burden of proving that any
person has been guilty of a crime or a wrongful act, is subject to section 139
of the Act, on the person who asserts it. In the case of Woolmington v DPP, the
accused had been convicted of the murder of his wife by shooting her in the
kitchen of her mother’s house. The accused testified at the trial that the
shooting was an accident. His story was that his wife had left him and returned
to live with her mother; he had gone to the house to persuade her to come back
to him, with the plan of producing a gun and threatening to shoot himself if
she refused. On her refusal he duly poduced the gun, but some how it went off
accidentally and shot her. In his direction to the jury, the tial judge stated
that once the prosecution had proved that the deceased had died at the hands of
the accused, then he was presumed to be the murderer unless the accused could
satisfy the jury that it was an accident. However, the House of Lords held that
the direction was wrong and allowed the appeal of the accused to it. The court
held that the prosecution not only has the burden of proving that the accused
killed the deceased, but that the killing was not an accident, that the accused
as done it with malice required for the offence of murder.
Meaning
and nature of standard of proof
While burden of proof is the obligation
which the law imposes on a party who desires the court to give judgment in his
favour or who will fail if no evidence is adduced whether in criminal or civil
trial, standard of proof refers to the degree of probability facts must be
proved to be true. The term standard of proof also means the “quantum of proof”
required to discharge burden of proof. Although the law sets a degree of proof
required to discharge a burden, no party is ever required to prove facts to an absolute standard
mathematical or certainty. It it noteworthy that standard of proof is
categorised into standard of proof in civil cases and criminal cases. Thus, the
standard of proof in criminal cases is higher in degree to civil cases. We will
now consider these two categories below:
a.
Standard of proof in civil cases: Generally, in civil cases, the standard
of proof is based on proof by preponderance of evidence. The plaintiff is
not required to proof his case beyond
reasonable doubt, the burden on him is just to establish that the story is more
likely to be true than that of the defendant. Standard of proof received
judicial pronouncement in the case of Miller
v Minister of Pensions (1947) AC 154 at 156, the court per Lord Denning
stated thus:
the…
degree of cogency… required to discharge a burden in a civil case… is well settled. It must
carry a reasonable degree of probability, but not so high as required in a
criminal case. If the evidence is such that the tribunal can say: ‘we think it
is more probable than not ‘the burden is discharged, but, if the probabilities
are equal, it is not.
Standard of proof in criminal cases: Section 133(1) of the Evidence Act 2011
provides that there must be proof beyond reasonable doubt in criminal cases.
This means that every ingredient of the offence must be provided. This point
was illustrated in the case of Ishola v
State (1962) 1 NMLR 259. The court cannot convict where there is a doubt
about the accused’s guilt. Thus, the inquirer is not concerned with the proof
of innocence of the accused, but the prove of guilt.
