CURRENT ISSUES IN THE LAW AND PRACTICE OF EVIDENCE

THE PROFESSOR’S PODIUM
By Ademola A. Adewale

INTRODUCTION:
The law and practice of the law of evidence is at the heart of the practice of court room lawyers, advocates - who still remain the archetype of the lawyer in the minds of most members of the society. The practice and procedure of the law of evidence for the most part, determines the outcome of cases. For the claimant, how much of the legally required evidence he can produce to substantiate his claim, and for the defendant, how much of the evidence of his opponent he can shut out altogether or at least discredit to sustain his defence. In the final analysis, when the imaginary scale of justice is weighed by the impartial arbiter, the judge, the decision is given in favour of whichever party, the heavier scale tilts. Mogaji vs. Odofin (1978) 4 S.C. 93; Mogaji Vs. Cadbury Nigeria Limited (1985) 2 NWLR (Pt 7) 393.

Thus, the law, practice and procedure on evidence is crucial to the dispensation of justice in the land. The point however may be made in passing, that other times the outcome of cases could be more dependent on the application of strictly legal issues like principles of common law, statute or the constitution. Largely, the evidence on offer by parties hold the key to the eventual outcome. Till date, the primary source of the law of evidence remains the Evidence Act (applicable as Laws in the States of the Federation) first enacted m 1945, with minor revisions and modifications in 1958, 1990, 2004 and 2007. Yet, the whole world including our nation, Nigeria has undergone tremendous socio-political and legal changes since the British colonial government adopted the 12th Edition of the Sir Stephen's Digest of the Law of Evidence for Nigeria on 1st June, l945.

Due to the constraint of time and space, it is impossible to highlight all the areas where the existing law of evidence remains inadequate. Just a handful of areas will be highlighted for discussion.

(i) Tendering of Newspapers and Magazines.
It is usually difficult to tender Newspapers, Magazines or journals in our courts. That is because most judges insist on accepting only certified true copies of such Newspapers, magazines or journals, which can only be tendered through an official of the National Library Board. So in practice, a party is put to the expense of making photocopies of the said magazines, newspapers or journals from his own personal record or library, taking the same to the National library for certification, taking out a subpoena to summon to court, the officer of the National Library Board to tender the said certified copy from so-called proper custody, with all the attendant costs and expenses. Almost invariably the said certified true copy is nowhere as legible or clear to the sight as the original copy of the said publication, which is in private hands. What is particularly disturbing here is that this issue has been resolved as far back as 1979 in the case of Ogbunyiya vs. Okudo (1979) 3 L.R.N 318 by the Supreme Court, that “On the true construction of sections 112(a) (i) and 115 of the Evidence Act, a court which has before it a public document must take account of and admit the document in evidence and there is no need for the public document to be produced in court by a witness testifying on oath" with the effect that rather than tender illegible certified true copies of newspapers and journals through the national librarian, the real newspapers could in fact be tendered by counsel from the Bar or at least tendered through a witness in the box. Yet, four out of five judges prefer the procedure of tendering the certified true copy to the original. The new evidence law must enact the Ogbunyiya v Okudo (supra) decision into law and remove this archaic procedure.

(ii) Proper Custody and Maker of Documents:
Another of the more popular yet anachronistic procedure known to our law is the law of evidence relating to proper custody. The application of this rule, particularly in civil matters, is simple enough and that is, the best person to tender a document in evidence is the maker itself. This is captured in essence in Section 91 of the Evidence Act. But in practice, the operation of this rule gives results that could not have been intended by the makers of the evidence act. For example, if a fact in issue relates to a function I attended, at which my pictures were taken by a photographer whom I never met before the occasion and has not seen ever after. I will find it difficult to tender the photographs of my very person in my possession before most judges without the evidence of the negatives or the photographer himself. In fact, most judges will insist that only the photographer who took my photograph pictures can tender them and then with the negatives. I am of course not unaware of the proviso to Section 91(b) as to tendering these photographs in the absence of the photographer if he is dead, unable to attend court for infirmity of body or mind. If he is overseas, it will be very expensive to get him to court, or if I am unaware of his whereabouts. But, anyone who is familiar with law practice knows that satisfying any of these conditions is easier said than done, particularly with an able counsel on the opposing side.

The rule of proper custody is particularly burdensome in matters relating to documents in official or public custody when such documents relate to a case against government or public interest. Who is that Nigerian public official to assist you not only in procuring a document that will assist your case or matter against the agency where he works or goes ahead to certify the same for you? Yet in such matters by a combined reading of Sections 97, 109 and 111 of the Evidence Act and Section 7 of the Public Archives Act, only the certified true copy of the said documents, certified by an officer or director of the appropriate department (and in certain instances with the seal of the said department) are admissible in evidence as secondary documents.
Olukade Vs Alade (1976) 1 ANLR 56 at 61
Owodunmi Vs. Reg. Trustees of C.C.C. (2000) 6 S. C. (Pt 111) 60
Araka Vs. Egbue (2000) 12 S.C. (Pt 1) 99.

In the golden era of the Supreme Court when activists justices such as Kayode Eso and Chukwudifu Oputa, held sway in the apex courts, serious efforts were made to whittle down this anachronistic and technical rule of admissibility in such cases as in the celebrated case of Torti vs.Ukpabi (1984) 1 S.C. 370 where it was held that in the admissibility of documents in evidence, the major issue to be considered is relevancy and not proper custody. Indeed Kayode Eso JSC went so far as to say that the rule relating to proper custody is now anachronistic even in relation to public documents.
Thus, in Torti Vs Ukpabi (supra) a party was allowed to tender in evidence duplicate copies of certain electoral documents in his possession when FEDECO, the predecessor of the present day, INEC, refused to make available the certified true copy of the said form.

The court took advantage of the occasion to make the necessary distinction between admissibility and weight; the court held that a document that is relevant to a fact in issue which is pleaded is relevant and admissible while the question of weight becomes relevant as to whether it is from proper custody or not. Thus, a document could be admitted in evidence if it is relevant but at the end of the day no weight might be attached to it if it is not from proper custody and perhaps suffers other legal defects. The Torti vs. Ukpabi case was seen as being revolutionary by many pundits overturning the very restrictive practice and procedure in admitting public documents or even private documents which are otherwise not readily available. But the law has in recent times turned full cycle with the Supreme Court going back to the restrictive rules of admissibility of the days of yore.
Araka VS Egbue (2003) 17 NWLR (Pt. 848) 1 @18
Onochie vs. Odogwu (2006) 2 S.C (Pt. II) 153

Thus, documents can only be readily tendered by their makers and in the case of public documents, only from proper custody. It is suggested that the more liberal approach espoused in Torti Vs Ukpabi should form part of our new law of evidence.

(iii) Electronically Generated Evidence including Computer print-outs Of Statements of Account.
These are the days of the internet with the attendant electronic lifestyle: e-commerce, e-banking, e-government and even, e-litigation which is gradually catching up and ready to overtake the way and manner litigation is conducted. In jurisdiction like Lagos, the courts are automated with court proceedings captured by electronic recording systems, there is talk of e-filing by which court processes will be filed on-line and it is only a matter of time, perhaps in less than a decade from now when court proceedings will be conducted on-line or media-conference style with counsel either in the comfort of their offices or from designated centres arguing their motions or conducting trials of witnesses who might perhaps not be at the same location with their counsel. The only limiting factor to what the court proceedings of the very near future might be is lack of imagination or absence of the will to move with the times.
In such a setting, it is very obvious that the main body of our law of evidence which is the Evidence Act set in the atmosphere of 1945, is simply pristine and archaic. Little wonder that some of the greatest problems lawyers encounter in relation to evidence in court is in relation to electronically generated evidence. Some of the best legal minds in the land such as Prof. Yemi Osibajo SAN have done extensive studies in this area and there is little I can do to improve on their efforts except to highlight one or two areas that regularly affect the day-to-day practitioner.

Tendering of e-mails:-
Virtually every court of law will admit in evidence an e-mail letter that is relevant to a fact in issue in a matter. Problems usually arise in relation to transactions involving public or government agencies, particularly where there is a dispute as to the admissibility of the e-mail. What happens when an individual or a private organization sends an e-mail to a government agency, particularly where there is a dispute as to the admissibility of the e-mail to a government agency where the officers of the agency concerned deny receipt, how will the dispute be resolved? By the tendering of the floppy drive or flash drive? Again, what happens where a public agency sends an e-mail to an individual or private organization and the latter disputes the receipt of the mail, will the hard copy of the message, which by necessary implication will not contain the government official logo, be admissible in evidence? Is the problem solved by certifying the hard copy of the e-mail? Even if the latter is accepted under Section 97 of the Evidence Act as it presently stands, does it prove the fact of receipt by the disputing party? What is the probative value of the scores of SMS/text message we daily send and receive under the Evidence Act? And in the absence of technology locally for call tracing/tracking as it exists in more developed societies, how easy is it under the present law of evidence to prove that a particular call emanated from an accused person in a criminal trial? I have no answers for most of these posers, and those who do will do well to sit down as a group and update our Evidence Act to effectively answer the above and other related questions.

One area of this sub-theme about the incompatibility of the present state of our laws with the reality of the times is almost daily manifested in the tendering of contemporary bank statement of accounts done in the form of computer print-outs. At the expense of being branded a hypocrite, I, just like many other lawyers has been a beneficiary of the archaic state of our law of evidence. The scenario here is quite simple, in a civil trial involving a banker-customer relationship, the bank's lawyer attempts to tender the customer's statement of accounts usually in the form of a computer print out on a sheet which clearly had the bank's logo and other symbols on it. The customer's lawyer objected to the admissibility of the computer print out as not satisfying the certification requirement of Section 97(l)(h), 2(e) of the Evidence Act and citing several cases such as Yassin Vs. Barclays Bank D.C.O (1968) 1 NMLR 171 at 179, Yesufu Vs. A.CB (1976) 1NMLR 83, Oguma Ltd Vs. IBWA (1988) 1 NWLR (Pt 731) 656, Araka vs. Egbue (2003) 7S.C. 75.
Almost invariably, the customer's lawyer's objection was upheld, as being the present state of law, though the court laments the injustice thereby occasioned but which only the legislature can correct.
One fear the courts continue to entertain in relation to computer generated evidence generally, whether banker's statement or otherwise is the likelihood of being manipulated to deceive. Niki Tobi J.S.C. summarises such fears in Araka Vs. Egbue (supra). "One main objective behind Section 97 (2) ( c) of the Evidence Act is to ensure the authenticity of the document tendered vis-vis the original. This is in addition to the need for the preservation of public documents. In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of Section 97(2) cal could be tutored and therefore not authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has not the eyes of an eagle to detect such tricks." No one, I believe can improve on the reason given by his lordship for the suspicion with which our courts treat computer generated evidence including computer print-outs and statements of accounts.

Nevertheless, it is submitted that our law of evidence ought to be updated to admit computer print-outs in line with modern day realities. Perhaps, the new law will accommodate the distinction between weight and admissibility, making computer-generated evidence admissible upon the fact of relevance subject of course to weight to be attached. In the case of Statements of Accounts, perhaps the new law may contain a proviso that no weight is to attach to documents admitted in evidence unless corroborated by some other evidence.

It is worthy of note, that while our law on electronically-generated evidence remains in infancy, in the more technically advanced jurisdictions, the talk has already shifted to the admissibility or not of contract executed beyond borders by scanning the parties’ signatures.

Finally, on this point, the clarification needs to be made that most of the concerns on computer-generated evidence relates to civil cases as opposed to criminal cases where it would seem that based on the rule in the old case of Musa Sadau vs. State (1968) NMLR 208. A piece of evidence may be relevant and admissible in a criminal case even though obtained illegally. This would explain the relative success of agencies like the Economic and Financial Crimes Commission, (EFCC) in securing convictions for international financial crimes where most of the evidence consists of electronically-generated evidence like e-mails, fax messages, electronically wired instructions etc.
The challenge still remains, nonetheless to bring our law of evidence up to date with international and global practices.

(iv) DE-NOVO TRIALS:
Many at times, years and months of painstaking judicial efforts become undone and come unstuck by certain supervening events beyond the control of all those involved, including the judge. A judge or case is suddenly transferred, judge gets elevated to higher bench or secures another judicial appointment which takes time, sometimes, for months or a few years. Judge retires or suddenly passes on; and all the efforts so far which have been agonizingly slow in the first case, have to start afresh as if it were a new case; courtesy of the DE NOVO Principle “....trying a matter anew, and as if no decision had been previously made.” New hearing or a hearing for the second time, contemplating an entire new trial in the same manner in which the matter was originally heard and a review of the previous hearing. Trial de-novo means nothing more than a new trial. This further means that the Claimant is given another chance to re-litigate the same matter or rather, in a more general sense, the parties are at liberty, one more to reframe their case and restructure it as each may deem it appropriate. In trials de-novo, the case must be proved anew or rather re- proved and therefore, the evidence and verdict given previously are completely inadmissible in a matter de-novo on the basis that prima facie, they have been discarded or got rid of. Babatundc Vs Par Atlantic Shipping Agencies Ltd (2007) 4 S.C. (Pt I) 71

This rare instance of a second bite at the cherry is predicated on the desire to allow the new judge to start on a new slate without being influenced by the biases and the prejudices of the earlier judge. It is possible that in the new trial, evidence which had been tendered and marked "rejected" in the old trial may be freshly tendered and properly admitted by the new judge or vice-visa. But the procedure is not without serious problems; vital documents tendered in the earlier suit do at times get lost, while star witnesses who testified in the earlier suit, might as at the time of the second trial, died, become infirm in mind or body or simply be unavailable for trial.

There exists a procedure to tender the earlier evidence in the first trial under Section 34(1) of the Evidence Act. Shanu Vsa Afribank Plc (2002) 6.S.C. (Pt. ii) 135. But, the requirements of the section are stringent and applied by the court strictly, such that it is not automatic that the earlier evidence will sail through in the new trial. It is suggested that the new law of evidence should relax the rules of admitting previous evidence, particularly where the same has been captured electronically. Furthermore, in the case of missing documents, copies of the original should be admissible in evidence subject to the weight of evidence to be attached. This can only make our law of evidence more responsive to the attainment of justice.

(v) Dead, Infirm, Missing or Unavailable Witnesses:
It is not the phenomenon of a trial de-novo that is the reason for concern per se, but our notoriously slow judicial process. It is not uncommon in long, drawn trials that the vital witnesses are elderly men and women, many of who pass on or become infirm during the trial at any stage between examination-in-chief, cross-examination or re-examination thereby making it impossible for their testimonies to be concluded. The prevailing practice is to expunge their testimonies, particularly if they have not been cross-examined or where cross-examination has not been concluded. Where a party's case rest mainly on the testimony of these elderly ones a certain failure of claim or defence is assured, the feeling of helplessness is best imagined.

It is suggested that these vital, even if incomplete testimonies should be admissible in evidence subject to the necessary weight to be attached based on the surrounding circumstances, such as corroboration of evidence by other witnesses, documents available etc. Here, the new law of evidence might borrow a leaf from the existing Sections 117 and 118 of the Evidence Act which were in fact used by the Supreme Court to admit in evidence a Power of Attorney sworn to before a Notary Public in the common law nation of Hong Kong in our Nigerian Court in Melwani vs. Five Star Industries Limited (2002) 1 S.C. 120.

The suggested provision becomes all the more compelling in view of the front-loading provisions of some of our jurisdictions like Lagos and the F.C.T Abuja where all depositions are in fact made on oath before a Commissioner of Oath, even before the witness steps into the witness box to give evidence.

This will certainly revolutionise the tendering of evidence of witnesses who due to no fault of theirs are unable to complete their testimonies. This can only serve to bringing justice closer to the people which is the major objective of the judicial process.

Conclusion:
This essay is by no means conclusive of the changes required to bring our law of evidence at par with the demands of the present times. Nevertheless, an attempt in all modesty has been made to draw attention to certain areas where the existing regime of the law of evidence is patently inadequate to serve the objective of the Nation's judicial system to bring justice closer to all citizens.