-->

Classification of Judicial Evidence: An Overview


Judicial evidence is the means by which facts are proved but it does not include inferences and arguments by counsel in court. Inferences can be in the form of analogies; while argument is on the law based on facts presented before the court. Judicial Evidence can be given either orally, in a documentary form or by inspection of things or a visit to the locus inquo (the scene of the event).
Evidence is used in connection with the admissibility of fact. For a document to be admitted as evidence, it must be pleaded in the statement of claim; because the golden rule of practice does not allow the springing of surprises on the opposing party. Otherwise, the unpleaded statement cannot be admitted to evidence.
This is consistent with the ratio in Muhammadu Duriminiya v. Commissioner of Police (1961) NRNLR 70-74, where the court said that “a trial is not an investigation and an investigation is not the function of the court. A trial is a public demonstration and testing before a court of the cases of contending parties. The demonstration is by assessment and evidence. The testing is by cross-examination and evidence. The function of a court is to decide between the parties on the basis of what has been so demonstrated and tested”.
Judicial evidence does not include facts not proved. Whatever the ideas or impression of a judge are, facts outside the proceedings cannot be relied on when giving judgments. In other words, even if a judge knows of any fact outside what is pleaded in the statement of claim, he cannot rely on them when giving judgment. Thus, evidence is the means by which facts are proved before the court in a proceeding. It does not include facts discovered by the judge or jury on inferences not proved by parties.
Facts discovered by a judge through an investigation of his own are not evidence before the court, and cannot therefore be admissible. Note that if any judgment is based on evidence as a result of investigation by a judge and not evidence before the court, such judgment will on appeal be rendered null and void ab initio and of no effect what so ever.
Classification of Judicial Evidence
There is no one way of classifying evidence. Judicial evidence may be classified into various types on different bases, especially depending on their nature. Different writers have classified Evidence in different ways. Let us look at some of them.
a.     Cross and Williams classified Evidence into: (i) Direct and Circumstantial (ii) Primary and Secondary and (iii) Insufficient, Prima Facie and Conclusive.
b.    Fidelis Nwadialo classified Evidence into: (i) Direct and Circumstantial Evidence (ii) Direct and hearsay Evidence (iii) Oral and Documentary (iv) Real Evidence and (v) Primary and Secondary Evidence.
c.      Other classifications are into: (i) Direct and Circumstantial (ii) Direct and Hearsay or Original and Hearsay (iii) Oral and Documentary (iv) Primary and Secondary (v) Prima facie and Conclusive (vi) Personal and Real (vii) Pre-appointed and Casual and (viii) Best Evidence.
d.    Evidence may also be classified into: (i) Direct and Indirect Evidence (ii) Direct and Hearsay Evidence (iii) Oral and Documentary Evidence (iv) Primary and Secondary Evidence (v) Personal and Real Evidence (vi) Pre-appointed (or Pre-Constituted) and (vii) Best Evidence.
Be that as it may, no one classification is better than the other. In a conflict situation, it is incumbent that you must, (whether consciously or not) determine the nature of evidence, whether or not the piece of evidence before you belongs to any of the categories classified. From there, you proceed further to determine rules of law you should apply to the case. The important thing therefore is that you are able to identify each type of evidence and understand which rule to apply to the particular case.


1.     Best and Inferior Evidence

This means that people should present to the court the best evidence available and possible. This particular classification is limited to admission of documents. For example, in the case of a breach of contract, a party is not allowed, in the absence of explanation, to submit a Photostat or Carbon Copies; but, original copies. Any other document that is submitted is inferior evidence. Best evidence (that is to say, primary or actual or original document) is also called primary evidence and the inferior evidence (that is to say, the Photostat or carbon copies) is also known as secondary evidence

2.     Direct and Circumstantial Evidence

In oral evidence or testimony, the direct evidence consists of either the testimony of the witness who perceives the facts with his objective senses or the production of the original document which constitutes the facts in issue. In fact, direct evidence is evidence of a fact in issue. This is so because the evidence relates directly to the very issue which is the subject of judicial inquiry.
By section 258 of the Evidence Act, a fact in issue includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows. This means that a fact in issue is what a plaintiff in a civil proceeding need to prove in other to establish his/her claim and what the prosecutor in a criminal trial needs to prove in order to secure a conviction.
Conversely, in circumstantial evidence, the court will accept evidence from which it can infer that a particular fact or facts exist or do not exist. Thus, circumstantial evidence is evidence not of the fact in issue; but, of other facts from which the facts in issue could be inferred. The rationale for circumstantial evidence was stated in Udo-debia and Ors. v. The State (1976) 1 SC 133, by the Supreme Court as follows: “where direct testimony of an eye witness is not available, the court is permitted to infer from the facts proved, the existence of other facts that may be logically inferred”.
For circumstantial evidence to be admissible in a criminal trial, it must be irresistibly conclusive that the accused person must have done what constitutes the fact in issue. Also, for circumstantial evidence to warrant a conviction it must be cogent and compelling and there must be no aspect of the case which weakens or destroys any inference as to the guilt of the accused person that could be drawn from the circumstantial evidence.

3.     Direct and Hearsay Evidence

Direct evidence is the testimony of a witness based on his own knowledge. That is to say, the testimony of the very person who perceived the event with any of his objective senses. However, if the fact to which the person is giving testimony does not come from his own knowledge; but, rather from a report of what he/she was told by another, then that piece of evidence is hearsay and is generally inadmissible.

4.     Prima Facie and Conclusive Evidence

Prima facie evidence is one that the court will take, when adduced before the court and is not contradicted, as being enough to prove the fact in issue. For example, if the fact in issue is the membership of a company, the production or possession of a share certificate is prima facie evidence of one’s membership in that company; except the evidence is rebutted by the prove of fraud. Again, prima facie evidence is evidence that will stand in the absence of another contradicting piece of evidence.
Conclusive evidence is evidence which the court must accept as being conclusive or sufficient to prove a fact in issue. At times, it is used to denote the forensic evidence that lawyers will use to persuade the court to accept as proof of fact in issue. Accordingly, whereas prima facie evidence is accepted in the absence of evidence in rebuttal to contradict the said evidence; evidence is conclusive if it needs no evidence in rebuttal or to contradict the said evidence. For example, once it is established that an offender is an infant, it is conclusive that he cannot commit crime. Irrebuttable presumptions of law are excellent examples of conclusive evidence.


4.     Oral, Documentary and Real Evidence

This is the three main classes of judicial evidence. Oral evidence is given by means of assertion or statements made by a witness in open court. It is the assertion of a human being offered as proof of the truth of that which is asserted. Oral (otherwise known as parole) evidence is given by words of mouth in the open court. It is trite law that all facts except the contents of document may be proved by oral evidence: section 125 of the Evidence Act, 2011.
By section 258 of the Evidence Act, 2011, fact includes;
(a)               any state of things or relation of things capable of being perceived by the senses; and
(b)              any mental condition of which any person is conscious.
However, if evidence is contained in a document, it is known as documentary evidence. Documentary evidence is a statement contained in a document tendered as a means of proving a fact. According to section 258 of the Evidence Act, 2011, ‘document’ includes—
a.     books, maps, plans, graphs, drawings, photographs, and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter;
b.    any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it, and
c.      any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and
d.    any device by means of which information is recorded, stored or retrievable including computer output.
Generally, where documentary evidence is tendered, no oral version of the same evidence is admissible. A document becomes an exhibit when tendered. Indeed, documentary evidence, it is said, speaks for itself. The meaning of this is that no extrinsic evidence is admissible to contradict documentary evidence. However, there are exceptions to this rule. For example, a person can plead to vary the contents of a document on the ground that at the time that the document was executed, the person did not have the requisite capacity by virtue of being a minor, an insane person, and so on.
It is instructive to note that documentary evidence may be sub-classified into two, namely; primary and secondary documentary evidence. Primary documentary evidence is the document itself, that is the original document in which the facts to be proved are stated. Secondary documentary evidence on the other hand, refers to either a copy of the original or an oral account of the contents of the original. The contents of a document may be proved by primary or secondary evidence.
Finally, real evidence involves the inspection of material objects, including a human being, other than documents produced for the examination of the court. In other words, real evidence means material objects other than documents, produced for the inspection of the court. An object so produced in court is also an exhibit.
Examples of real evidence include instruments used in the commission of crimes like a gun in the case of a murder or a machine for minting counterfeit coins in a coinage offence. Thus, if a gun was used in a murder and that gun is tendered in evidence, the gun is real evidence. A document may also be real evidence if produced in evidence as an object and not for the purpose of using the statements contained therein as proof of a fact. Thus, where a document is tendered as the thing stolen in a charge of stealing, it is real evidence. Also, when a court moves to a locus in quo, with the parties, to carry out the necessary inspection, it is real evidence.

5.     Primary and Secondary Evidence

This is a sub-classification of documentary evidence. Primary evidence is the document itself produced for the inspection of the court (section 86(1) of the Evidence Act, 2011), that is the original document in which the facts to be proved are stated. Secondary documentary evidence on the other hand, refers to either a copy of the original or an oral account of the contents of the original.

The contents of a document may be proved by primary or secondary evidence: section 85 of the Evidence Act, 2011. However, section 88 of the Evidence Act, 2011 states categorically that documents shall be proved by primary evidence except in the cases mentioned in the Act. This means that the former provision (section 85 thereof) is subject to the latter provision (section 88 thereof) and is therefore to be resorted to when the primary evidence is not available after proper foundation has been laid.

Share this: