What Is Innovative in the Evidence Act, 2011?

Abstract

The Nigerian Law of Evidence is essentially statutory and this has been so since the Evidence Act 1943 was passed into law in what was then known as the Colony and Protectorate of Nigeria. The Evidence Act 1943 which came into force on 1^st June, 1945 became the first legislation governing matters of evidence in judicial proceedings before courts in the country, thus providing the primary source of the law of evidence. The role of the courts has been largely interpretative and through numerous decisions, the courts have defined the intendment, applicability and ambit of specific provisions of the Act. Some of the decisions have also alluded to lacunae in the legislation which had been remedied by resort to the common law rules of evidence which constituted subsidiary source of our law of evidence.[1]

It is interesting to note that the Evidence Act 1943 remained in force for about sixty-six (66) years and did not, at least prior to 2011, undergo any major amendment besides its republication in the different editions of the Laws of the Federation of Nigeria.[2] Given that the Nigerian society is not static, it is very arguable that a legislation that had remained in force for that long would invariably have had some disconnect with the realities of modern day judicial proceedings and the need to ensure even-handed dispensation of justice by our courts. This is to be expected given the tremendous advancements made in information communication technology across the world including Nigeria.

Unarguably, if any piece of legislation is to remain useful, it must as far as is reasonably practicable be responsive to the needs and challenges facing the society that it is designed to serve. Thus, it could be said that the repeal of the old Evidence Act, Cap E14 Laws of the Federation of Nigeria 2004 (hereinafter referred to simply as “Evidence Act, cap E.14”) and the enactment of the Evidence Act, 2011 expressed the determination of the National Assembly to enact a new evidence law that would address the shortcomings identified in the old law and thereby bring the law in line with the realities of the new information age.

In other words, there is always a presumption that the legislature does nothing in vain and that whenever it enacts a new law to repeal or amend an existing law, such alterations in the new law are directed against defects which have been noticed in the existing law about the time the new law was passed.[3] Thus, it is reasonable to expect that the Evidence Act, 2011 which repeals the Evidence Act Cap E14 LFN 2004 has addressed some of the defects identified in the old legislation through the introduction of some innovative provisions and/or the adaptation of some of the provisions contained in the repealed Act.

The purpose of this article is primarily to identify and examine the innovative provisions contained in the Evidence Act, 2011 and define the advancement made in the law by the National Assembly. However, since no piece of legislation can lay claim to absolute perfection, this article also intends to examine briefly the defects identified in the Evidence Act, 2011 with a view to drawing attention to possible areas of reform in the near future.

[1] Rex v. Onitiri [1946-1949] 12 WACA 58, where the court admitted in evidence the expert opinion of a Police officer on the authorship of a typescript by reference to the English common law because s. 56 of the Evidence Act Cap 62 did not deal specifically with the matter; similarly in Queen v. Itule [1961]1 ANLR 481 @ 485, a confessional statement which had both inculpatory and exculpatory contents was admitted in evidence by reference to the common law since s. 27 of the Evidence Act did not deal explicitly with the subject-matter.

[2] The two amendments prior to 2011 were introduced by the Evidence (Amendment) Act 1977 and the Evidence (Amendment) Decree 1991; the Act was first published as Cap 62 in the 1958 Edition of the Laws of the Federation of Nigeria and Lagos and later as Cap 112 in the 1990 Edition of the Laws of the Federation of Nigeria and as Cap E 14 in the 2004 Edition of the Laws of the Federation of Nigeria.

[3] Ado v. Dije [1984] 5 N. C. L. R. 260 @ 272.