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.