NIGERIAN LAW CLAZ

Learn the Law with M.P Daniel...

WELCOME TO NIGERIAN LAW CLAZ

LightBlog

UPDATES

8 Nov 2019

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.
0
v�o l�c No comments:
Labels:
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.

2
v�o l�c 2 comments:
Labels:

5 Nov 2019

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.
0
v�o l�c No comments:
Labels:
November 05, 2019

The Law on Burden and Standard of proof in the prosecution, Defendant and plaintiff who alleges crime in a civil case



Introduction
Burden of proof may be defined as a rule of evidence that imposes a duty or obligation by law on a party who asserts the existence or non-existence of facts in issue or on a party who desires any Court to get judgment as to any legal right or liability dependent on the existence of facts when he asserts or denies shall prove that those facts exist or that they do not exist.
Standard of proof on the other hand may be defined as the extent to which a party with the burden of proof has to prove his case (or an element of its case). Standard of proof can also be defined as the degree  or quality of proof required whether in criminal or civil trial to discharge a burden or onus the law imposes on a party.

           i.            The Prosecutor: The law on the burden of proof in the prosecutor is provided for by the provision of sections 131 and 132 of the Evidence Act 2011 respectively. The provision of section 131(1) provides: “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.” Subsection 2 of the same provision provides thus: “when a person is bound to prove the existence of any fact it is said that the burden of proof  lies on that person.”

Section 132 of the Act states thus: “the burden of proof in a suit or proceeding lies on that person who will fail if no evidence at all were given on either side.”
On the other hand, the law on the standard of proof in the prosecution is provided for by the provision of section 135(1) of the Evidence Act, 2011. This provision of the law states thus: “if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.”

        ii.            The Defendant: The law on the burden of proof in the defendant is provided for by sections 133(2) and 139 respectively of the Evidence Act 2011 respectively. Section 132 of the Act provides thus: “the burden of proof in a suit or proceeding lies on that person who will fail if no evidence at all were given on either side.” Section 133(2) further provides thus:
“if the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on succively, until all the issues in the pleadings have been dealt with.”
Section 139(1) of the Act provides thus: “where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case  within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged is upon such person.”

On the other hand, the standard of proof in the defendant is provided for by section 137 of the Evidence Act 2011. The standard of proof in the defendant whether in civil or criminal trial is proof on balance of probabilities.The provision of the law states thus: “where in any criminal proceeding the burden of proving the existence of any fact or matter has been placed upon a defendant by virtue of the provisions of any law, the burden shall be discharged on the balance of probabilities.”

     iii.            The plaintiff who raises allegation of crime in civil cases: The law on the burden of proof in a plaintiff who raises allegation of crime in civil cases is provided for by sections 131 and 132 and 139 of the Evidence Act 2011. The provision of section 131(1) provides: “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.” Subsection 2 of the same provision provides thus: “when a person is bound to prove the existence of any fact it is said that the burden of proof  lies on that person.”
Section 132 provides thus:“the burden of proof in a suit or proceeding lies on that person who will fail if no evidence at all were given on either side.”
The law on the standard of proof in a plaintiff on raises allegation of crime in civil cases is provided for by section 135 of the Evidence Act 2011. This provision of the law states thus: “if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.”

0
v�o l�c No comments:
Labels: