Sources of the Law of Evidence

The Law of Evidence is unique in that it applies to all branches of law. Generally, you can say that the Law of Evidence derives from the following: (1) local laws and custom (2) Received English Law, to wit; a. the English Common Law b. the doctrines of Equity, and c. The statutes of general application in force in England as at January 1, 1900 (3) Local legislations and the judicial interpretation based on them (4) The Law Reports (5) Text Books and Monographs on Nigerian Law and (6) Judicial Precedents.

The Evidence Act 2011 is the main source of the Law of Evidence in Nigeria. The Act contains the greatest of our general law relating to evidence. However, although the Evidence Act 2011 is the main source of the Law of Evidence in Nigeria, any relevant statute such as the Constitution may be resorted to for the purpose of supplementing the provisions of the 2011 Evidence Act where necessary.

The position is supported by section 3 of the Evidence Act 2011 which provides to the effect that nothing in the Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria. However, the Evidence Act 2011 is silent on the admissibility of a piece of evidence which is admissible at common law. This is unlike the Evidence Act Cap E 14 Laws of the Federation 2004, section 5(a) thereof, which has been held to allow the admission of evidence under the rules of the English Common Law.

Nonetheless, the position of the Common Law of England as a source of Nigerian Law of Evidence is as stated in Onyewusi v. Okpukpara (1953) 14 WACA, where the court stated that it is the Evidence Act or if the Act is silent, the Common Law of England that applies in the High Court. In other words, the Common Law of England is a source of Evidence Law in Nigeria where the Evidence Act 2011 is silent on a matter or where there is a lacuna in the Nigerian Law of Evidence. This is consistent with the position in R v. John Itule (1961) 1 All NLR 462, where the court, in response to an issue whether part of a confession of an accused person which did not incriminate him is evidence of the fact alleged, held that the English Common Law rule of evidence is applicable since the matter was not expressly dealt with by section 5(a) of the then applicable Evidence Act, Cap 62 Laws of the Federation of Nigeria 1958.

However, rules of the Common Law of England on Evidence cannot be made use of to exclude any evidence which is admissible under the Evidence Act 2011 or under any other statute applicable in Nigeria. Similarly, any piece of evidence declared inadmissible by the Evidence Act 2011 cannot be admitted by any rule of English Common Law on Evidence.

Again, if the provisions of the Evidence Act 2011 are in conflict or inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, the provisions of the Evidence Act 2011 will by virtue of section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria Cap C 23 Laws of the Federation of Nigeria, 2004 be declared null and void to the extent of the inconsistency. However, if the provisions of the Evidence Act 2011 are in conflict with the English Common Law rules on evidence or any other statute, the Evidence Act 2011 will prevail.