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.