'Relevancy' and 'Admissibility'. The
word 'Relevancy' derives from the
adjective
'Relevant'. Relevancy refers to the
fact, quality or state of being relevant, relation or pertinence to the issue
at hand. Relevant evidence, on the other hand, is evidence tending to prove or
disprove a matter in issue. Relevant evidence is both probative and material,
and is admissible unless excluded by a specific statute or rule.
Conversely, admissible
evidence is evidence that is relevant and is of such a character that the court
should receive it. Admissibility is the quality or state of being allowed to be
entered into evidence in a hearing, trial or other proceeding.
The Law of Evidence is
dependent on admissibility and relevancy of evidence or facts. The basic
principle of law governing admissibility of evidence in a judicial proceeding
is that a piece of evidence is admissible if it is relevant. So, it is only
evidence of relevant facts which is admissible in evidence. Therefore,
admissibility is dependent on relevancy. In other words, for a piece of
evidence to be admissible, it must be relevant. But, this is not necessarily vice
versal, since a piece of evidence could be relevant without being
admissible.
In Nwabuoku v
Onwordi (2006) All FWLR (Pt. 331) 1236 at 1251, the Supreme Court held that
admissibility of evidence is based generally on relevancy, as a fact in issue
is admissible if it is relevant to the matter before the court. It concluded,
therefore, that since relevancy is the
precursor of admissibility, what is not relevant is
disability
asserted or denied in any suit or proceeding necessarily follows. Thus, a fact
in issue must meet two conditions – (a) being a fact and (b) being in issue.Black‘s
Law Dictionary talks about a Res Gestae witness – as a witness who
having been at the scene of an incident, can given a firsthand account of what
happened.reason
of it being made ―an appreciable time after the actual wound was inflicted‖.
Similarly, in the earlier case of R v. Beddingfield (1879) 14 Cox CC 341,
the statement made by the deceased who, with a cut throat, had staggered out
and said ―Oh Aunt, see what Harry has done to me‖ was held inadmissible as it
was merely a narration of a transaction which was over and done with before the
statement was made.of
any fact in issue or relevant fact probable or improbable. Alibi is an
excellent example of this category of facts relevant to the facts in issue.letters
to the post office for posting is relevant, even though he cannot remember that
particular letter.time
being in force excluding the admissibility of such fact. In this case, the law
excludes such facts because of its prejudicial character.
therefore, that since relevancy is the
precursor of admissibility, what is not relevant isdisability
asserted or denied in any suit or proceeding necessarily follows. Thus, a fact
in issue must meet two conditions – (a) being a fact and (b) being in issue.Black‘s
Law Dictionary talks about a Res Gestae witness – as a witness who
having been at the scene of an incident, can given a firsthand account of what
happened.reason
of it being made ―an appreciable time after the actual wound was inflicted‖.
Similarly, in the earlier case of R v. Beddingfield (1879) 14 Cox CC 341,
the statement made by the deceased who, with a cut throat, had staggered out
and said ―Oh Aunt, see what Harry has done to me‖ was held inadmissible as it
was merely a narration of a transaction which was over and done with before the
statement was made.of
any fact in issue or relevant fact probable or improbable. Alibi is an
excellent example of this category of facts relevant to the facts in issue.letters
to the post office for posting is relevant, even though he cannot remember that
particular letter.time
being in force excluding the admissibility of such fact. In this case, the law
excludes such facts because of its prejudicial character.
also not admissible.
Section 1 of the Evidence 2011 clearly reflects
the above position by providing
that:
Evidence may be given in
any suit or proceeding of the existence and non-existence of every fact in
issue and of such other facts as are hereinafter declared to be relevant,
and of no other; provided that:
a) The
court may exclude evidence of facts which though relevant or deemed to be
relevant to the issue, appears to it to be too remote to be material in all the
circumstances of the case; and,
b) This
section shall not enable any person to give evidence of a fact which he is
disentitled to prove by any provision of the law for the time being in force.
The implication of the above
provisions is that relevancy of facts is governed and
determined by the provisions of the Act relating to relevancy and not by
logic or
common
sense. Again, the
above section establishes
both the inclusionary and
exclusionary rules of
evidence, which of course are the rules that govern relevancy
under the Act. These two rules will be
briefly examined.
(1)
Inclusionary Rule
This
is contained in the first arm of the provision of section 1 of the 2011 Act
which summarily states that evidence may
be given in any suit or proceeding of the existence or non existence of every
fact in issue and of such other facts declared by the Act to be relevant.
Accordingly, by this section, evidence may be given of only two classes of
facts – namely – facts in issue; and other facts declared by the Act
to be relevant, which by implication constitutes facts relevant
to the facts in issue.
(a)
Facts in Issue
A fact in issue is defined by Section
258 of the Evidence Act 2011 in an
inclusive
manner to mean 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
A fact, according to section
258 thereof, includes (a) anything, 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. Facts in issue are those in dispute. A fact in issue
is any fact that needs to be proved in order to establish a claim, defence to a
claim, a crime or defence to a crime. According to the Halsbury’s Laws of
England, 4th
Edn. Vol. 17. Para. 30; a fact in issue are those facts necessary
to prove or disprove; to establish or refute a case or claim.
In the other words, a
fact in issue refers to those facts which must be proved to establish a crime,
claim and defence to a claim or crime. In a civil suit, for instance, all those
facts which the plaintiff must prove to establish his case and all those facts
which the defendant must prove to establish his defence are facts in issue.
Similarly, in a criminal case, all such facts as the prosecutor must prove in
order to secure a conviction, and all those facts which the accused must prove
to escape conviction will constitute facts in issue.
Since a fact in issue
is a fact which needs to be proved; any fact which need not be proved is not or
has ceased to be in issue. Examples are: presumed facts, admitted facts and
facts judicially noticed. Thus, not every fact is a fact in issue. Facts in
issue is determined primarily by substantive law and secondly by pleadings
(that is to say statement of claim or statement of defence).
As a matter of fact, it
should be noted that a fact which would have been in issue may cease to be so
by the nature of the pleadings. This would be so where the defendant had
admitted the facts. By the same token, a presumed fact or a fact judicially
noticed is not in issue; because such facts need not be proved by evidence.
(b)
Facts Relevant to the
Facts in Issue
As a general rule, it is only facts in
issue, as well as, facts which are relevant to
the fact in issue that
can serve as the foundation for the admissibility of a piece of
evidence. However, the 2011
Evidence Act fails to define 'Relevance' or 'Relevant
Fact'. But, what
constitutes a relevant or related to the fact in issue is deducible from the
combined provisions of Part II of the Evidence Act 2011. An examination
of some provisions of Part II of the Evidence Act 2011 will suffice.
First,
by section 4 thereof, facts which, though not in issue, are so connected
with a fact in issue as to form part of the same transaction, are relevant,
whether they occurred at the same time and place or at different times and
places. Thus, in a criminal charge, evidence of other facts which constitute
distinct offences; but which are at the same time part of the same transaction
as the criminal act is relevant.
Two types of facts will
come under the heading of section 4 of the Evidence Act 2011. These
are; (a) facts which occurred at the same time or place with the fact in issue
and (b) facts which occurred at a different time or place with the fact in
issue. Facts under (a) above are usually said to form part of the Res Gestae
of a transaction. Hence, facts which are so connected to a fact in issue as to
form part of the same transaction and which occurred at the same time and place
as the fact in issue is Res Gestae. It is clear that section 4
supra assimilates the principle of res gestae; but is wider.
Thus, whereas a fact
which is so connected with a fact in issue so as to form part of the same
transaction and which occurred at the same time and place as the fact in issue
is Res Gestae under the Evidence Act; however, evidence of a fact which
occurred at different times and places will be receivable under Section 4 of
the Act so long as they are so connected with a fact in issue as to form
part of the same transaction. To that extent, therefore, Section 4 can
be said to have assimilated the doctrine of Res Gestae.
Res Gestae is
used in connection with a fact in issue. It is a common law doctrine
previously admissible under section 5(a) of the Old Evidence Act; but
now inadmissible under the Evidence Act 2011; section 3 of the 2011 Act,
which provides 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, notwithstanding. The
Facts forming part of
the res gestae of a transaction are facts relevant to a fact in issue
because it throws light on it as a result of its proximity to it in point of
time, place or circumstance. Again, the facts which are admissible as forming
part of the Res Gestae of a transaction are usually declarations or statements
and acts, so long as they constitute, accompany or explain the fact in issue.
However, questions of evidence in connection with res gestae usually
arise with regard to statements or declarations since in the case of acts;
there is little scope of being misled. Evidence of such statements may be given
by someone who heard it. The statement may be oral or written. Certain conditions must
be fulfilled before the doctrine of res gestae becomes applicable at common
law. In other words, before a declaration or a statement can be admissible as
forming part of res gestae, it must fulfill some essential conditions
and these conditions are three in number.
1.
The statement or act must be
contemporaneous with the fact in issue. By contemporaneous,
it is meant that the statement must have been made substantially simultaneously
with the action or event which it accompanies in time, place and circumstances
that they are regarded as part of the thing being done.
This is consistent with
the view expressed in R v. Teper (1952) AC 480 at 487, where it
was stated that the statement must be made either during or immediately
before or immediately after the occurrence of the action or event so as to be
so clearly associated with it, in time, place and circumstances that they are
part of the thing being done. The purpose of this condition is to prevent or
ensure that there was no time for the maker of the statement or declaration to
alter the statement to his advantage.
In the case of R v.
Bang Weyeku (1943) 9 WACA 195, the statement of the deceased made in the
absence of the accused and shortly after the deceased had been stabbed that
―Bang has shot me‖ was held admissible as Res Gestae by
However, in Sunday
Akpan v. The State (1967) NMLR 185, the statement made by the deceased
―Sunday has killed me‖ was held admissible as part of the Res Gestae because it
was sufficiently contemporaneous with the event it purportedly sought to
explain. Also, in Sule Salawu v. State (1971) 1 NMLR 249, the
Western State Court of Appeal held that the statement by the deceased
―Sule is killing me‖ was admissible as forming part of Res Gestae. Thus, a
statement or declaration forming part of res gestae should be in present
continuous. Additionally, in the case of Oyename v. Oyedele (1957) LLR 37
(civil case) it was held that the
admission-statement was sufficiently contemporaneous with the collision to form
part of the Res Gestae.
2.
The statement must explain or
accompany the fact in issue; not prior or subsequent or disconnected facts.
What this means is that for a statement to be relevant and admissible as
forming part of the Res Gestae, such statement must explain the facts in issue
and not prior or subsequent facts which have no relationship with it. Thus, in Agassiz
v. London Tramway Co (1873), it was held that the statements were
inadmissible as it did not relate to the collision but to the past acts of the
driver.
3.
The statement or declaration must
be made either by the actor or the victim. This is
especially so in criminal cases. In Okokor v. The State (1969) NMLR 140
and Sunday Akpan v. The State (1967) NMLR 185, the statements admitted
as forming part of the res gestae in those cases were made by the
victims – the deceased. However, exclamation of a by-stander may be received as
res qestae as was done in Miline v. Leister (1862) 7 H&N 786.
Secondly,
by section 5 of the 2011 Evidence Act, facts which are the occasion, cause
or effect, immediate or otherwise, of relevant facts, or facts which are the
state of things under which they happened ,or which afforded an opportunity for
their occurrence or transaction, are relevant. For clarity, three categories of
facts are decipherable here; these are –
i.
facts which are the occasion, cause or
effect, immediate or otherwise of relevant facts;
ii.
facts
which are the state of things under which they happened; and
iii.
facts
which afford an opportunity for their occurrence.
By
section 5 thereof, all the above category of facts is relevant. Please
note that,
the provisions of section 5 is no
warrant for admitting hearsay evidence under section 38 of the
Evidence Act 2011. In Ozude v. IGP, a police constable was charged
with receiving bribe in order to stifle a case. The respondent argued
relying on this section that statements by the witnesses that the first witness
told them he had given money to the police officer. They Supreme Court rejected
it as hearsay saying that the provision is no authority for letting it in.
Thirdly, by
section 6(1) of the Evidence Act 2011, any fact is relevant which shows
or constitutes a motive or preparation for any fact in issue or relevant fact.
By motive we mean the reason for the act or omission; it is the factor that
impels somebody to act or fail to act; example love, fear. Jealousy, envy, etc:
Oguntolu v. The State (1987) 1 NWLR (Pt. 50) 464. Generally,
motive is of no importance insofar as criminal liability is concerned;
but is relevant.
Again, by section
6(2) thereof, the conduct, whether previous or subsequent to any
proceeding— (a) of any party to any proceeding, or an agent to such
party, in reference to such suit or proceeding or in reference to any fact in
issue in it or a fact relevant to it; and (b) of any person an offence
against whom is the subject of any proceeding, is relevant in such proceedings
if such conduct influences or is influenced by any fact in issue or relevant
fact.
regarded as
relevant to a fact in issue:
(a)
facts
necessary to explain or introduce a fact in issue or relevant fact;
(b)
facts which support or rebut an
inference suggested by a fact in issue or relevant fact;
(c)
facts
which establish the identity of anything or person whose identity is relevant;
(d)
facts which fix the time or place at
which any fact in issue or relevant fact happened: or
(e)
facts
which show the relation of parties by whom any such fact was transacted.
By section 7
thereof, all the above facts are relevant in so far as they are necessary for
that purpose. In the case of Obasanjo v Seaview Investment Ltd. (1993) 9
NWLR (Pt. 317) 327 at 328, the Court of Appeal held that a fact
which introduces a fact in issue is relevant notwithstanding the fact
that such a fact may be scandalous.
Fifthly,
by section 8(1) of the Evidence Act 2011, where there is reasonable ground
to believe that two or more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or written by any one of
such persons in execution or furtherance of their common intention, after the
time when such intention was first entertained by one of them, is a relevant
fact as against each of the persons believed to be so conspiring, for the
purpose of proving the existence of the conspiracy as well as for the purpose
of showing that any such person was a party to it.
In Enahoro v. R,
it was held that under this section, once there is reasonable ground for
believing in the existence of conspiracy, that is the court‘s satisfaction that
there are prima facie grounds for believing in the existence of conspiracy. In
the instance case, it was held that evidence of directions given by one of the
conspirators to the other two co-conspirators in furtherance of the plan was
admissible.
Sixthly,
by section 9 of the 2011 Evidence Act, facts not otherwise relevant are
relevant if — (a) they are inconsistent with any fact in issue or relevant
fact; and (b) by themselves or in connection with other facts they make the
existence or non-existence
Seventhly,
by section 10 of the 2011 Evidence Act, in proceedings in which damages
are claimed, any fact which will enable the court to determine the amount of
damages which ought to be awarded is relevant.
Eighthly, by
section 11(1) thereof, facts showing the existence of— (a) any state
of mind such as intention, knowledge, good faith, negligence, rashness,
ill-will or goodwill towards any particular person; or (b) any state of body or
bodily feeling are relevant when the existence of any such state of mind or
body or bodily feeling is in issue or relevant. It is pertinent to observed
that by section 11(2), a fact relevant as showing the existence of a
relevant state of mind must show that the state of mind exists, not generally,
but in reference to the particular matter in question.
Ninthly,
by section 12 of the Evidence Act 2011, when there is a question whether
an act was accidental or intentional, or done with a particular knowledge or
intention or to rebut any defence that may otherwise be open to the defendant,
the fact that such act formed part of a series of similar occurrences, in each
of which the person doing the act was concerned, is relevant.
Please take
notice that section 12 supra codifies the English Common
Law rule as to the admissibility of similar facts evidence, which is
evidence of the improper conduct of the parties on other occasions. Under the
section, evidence of other acts of the accused similar to the act complained of
may be relevant to defences of accident; lack of intention and lack of
knowledge. Also, this may have the effect of letting in evidence of bad
character of the accused: Makin v. AG for New South Wales.
Finally,
by section 13 of the same Act, when there is a question whether a particular
act was done, the existence of any course of business, according to which it
naturally would have been done, is a relevant fact. This principle is the same
as under the English Common Law. Thus, if it is necessary to prove that a
particular letter was posted, evidence that it was delivered to a clerk who was
in the habit of taking all
Therefore, relevancy is
determined purely by the provisions of the Act though these provisions are
constituted with common sense and logic. It may be noted that the Act
recognizes relevancy as determined by a logical relationship between facts. But
relevancy must always be viewed against the provisions of the Act for though
the rules appear logical, relevancy is governed not by logic but by the provisions
of the Evidence Act.
In the final analysis,
relevant facts are facts which as a matter of ordinary logic or experience tend
to render the existence of other facts probable or improbable. And admissible
evidence under the Evidence Act is evidence which is relevant and it should be
borne in mind that what is not relevant is not admissible: Agunbiade v.
Sasegbon (1968) NMLR 223 at 226, Per Coker JSC. Other categories of
relevant facts include facts affecting the weight and legal reception of
the piece of evidence. Therefore, any fact which does not fall within the
umbrella of facts constituting the inclusionary rule is not and cannot be
admissible; in fact, it is ipso-facto non-admissible.
(2)
Exclusionary Rule
The
exclusionary rule is contained in the proviso to Section 1 supra, which
is to
the effect that the court may not admit
a relevant fact or a fact in issue if same is considered by the court to be
too remote to the material in all the circumstances of the case. This is
the first exclusionary rule. The second exclusionary rule contained in the
proviso is to the effect that a fact which a party is not entitled in law to
prove, for instance; privileged facts or evidence amounting to hearsay, or
similar facts evidence will not be admissible or opinion evidence, except under
the exceptions.
Please Note That
while
under the first exclusionary rule, a fact is inadmissible if though
relevant, it is considered to be too remote to be material (in other words,
without any probative value); under the second exclusionary rule,
inadmissibility is not based on relevancy and (or) materiality, but based on
any provision of the law for the
The implication of the
foregoing is that although admissibility is predicated on relevancy; not all
relevant facts are admissible.
Relationship between Relevancy
and Admissibility
In the case of DPP
v. Kilbourne (1973) AC 729, the English Court of Appeal, per Lord Simon
opined that ―the terms relevancy and admissibility are frequently and in many
circumstances legitimately used interchangeably; but I think it makes for
clarity if they are kept separate, since some relevant evidence is inadmissible
and some admissible evidence is irrelevant‖. The provisions of section 14 of
the 2011 Evidence Act which provides for the admissibility of
improperly obtained evidence supports the above assertion.
Indeed, the relationship between
the two concepts may be noted as follows:
(i)
When it is said that a piece of evidence
is admissible, what is meant is that the evidence is relevant and is one which
can be admitted in a judicial proceeding because it does not offend any
exclusionary rule. A fact which is ordinarily admissible may become
inadmissible because a statute declared it inadmissible or the fact is too
remote to be material.
(ii)
Admissibility is a matter of law;
relevancy is usually, though not invariably, a matter of logic and common
sense. But, note that relevancy follows the provision of the law. Thus, facts
that are declared to be commonsensical relevant are so by the application of
the law. However, a fact which is commonsensical not relevant can be declared
relevant by the provisions of the law.
(iii)
Whereas all irrelevant facts are
inadmissible; not all relevant facts are admissible because of the above
highlighted exclusionary rule.
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