1.
Oral
Evidence
Also called “parol
evidence”, means evidence given orally – a verbal testimony of a witness. Oral evidence is not necessarily the best type of
evidence. The law is trite that all facts, except the
contents of documents, may be proved by oral evidence: section 125 of the Evidence Act, 2011. The conditions for the admissibility of oral evidence
are provided for in section 126 of the
Evidence Act, 2011 as follows:
Subject to the
provisions of Part III, oral evidence shall, in all cases whatever, be direct
if it refers to —
(a)
a fact which could be seen, it must
be the evidence of a witness who says he saw that fact;
(b) to
a fact which could be heard, it must be the evidence of a witness who says he
heard that fact;
(c)
to a fact which could be perceived
by any other sense or in any other manner, it must be the evidence of a witness
who says he perceived that fact by that sense or in that manner;
(d) if
it refers to an opinion or to the grounds on which that opinion is held, it
must be the evidence of the person who holds that opinion on those grounds;
Provided that the
opinions of experts expressed in any treatise commonly offered for sale, and
the grounds on which such opinions are held, may be proved by the production of
such treatise if the author is dead or cannot be found, or has become incapable
of giving evidence, or cannot be called as a witness without an amount of delay
or expense which the court regards as unreasonable.
The implication of the
forgoing is that oral
evidence must always be direct. However, there are some exceptions to this
rule:
1)
Evidence
by Affidavit is an exception to the above rule. Affidavit could be sworn to
loss of driving licence, for age declaration, etc. If a party to a case
disagrees with an affidavit sworn to by another, he will file a
counter-affidavit and not give oral evidence. This can be followed by a further
and better affidavit by the party who made the original affidavit.
2) Evidence by viewing the physical object either in
court or outside the court.
3) Production of the actual document.
Furthermore, by section 127 thereof;
(1)
If oral evidence refers to the
existence or condition of any material thing other than a document, the court
may, if it deems fit—
(a)
require the production of such
material thing for its inspection, or
(b)
inspect any moveable or immovable
property the inspection of which may be material to the proper determination of
the question in dispute.
Again, by section 128(2) & (3) of the Evidence
Act, 2011, which provides inter alia for
the exclusion of oral evidence by documentary evidence, the following points
concerning oral evidence are instructive.
(2)
Oral evidence of a transaction is
not excluded by the fact that a documentary memorandum of it was made, if such
memorandum was not intended to have legal effect as a contract, grant or
disposition of property.
(3)
Oral evidence of the existence of a
legal relationship is not excluded by the fact that it has been created by a
document, when the fact to be proved is the existence of the relationship itself,
and not the terms on which it was established or is carried on.
Additionally, section 205 of the Evidence Act,
2011 states that “save as
otherwise provided in sections 208 and 209 of this Act, all oral evidence given
in any proceeding must be given upon oath or affirmation administered in
accordance with the Oaths Act or Law, as the case may be.
Also, section 206 thereof, provides that “any
witness summoned to give oral evidence in any proceeding shall before giving
such evidence be cautioned by the court, or the registrar upon the court's
direction, in the following words - "You (Full name) ... are hereby
cautioned that if you tell a lie in your testimony in this proceeding or
willfully mislead this court you are liable to be prosecuted and if found guilty
you will be seriously dealt with accordingly to law."
2.
Documentary
Evidence
Documentary evidence is
that evidence which is supplied in a written or other document. It is a
requirement before the court can admit it in evidence. Section
83 Evidence Act, 2011
deals with the admissibility of documentary evidence as to facts in issue. It
is said to be a statement made in a document which is offered to the court in
proof of any fact in issue. Such documentary evidence can be proved by the
production of the document itself. Documentary evidence could be primary or
secondary documentary evidence.
This reading material has already highlighted the
relevant sections of the Evidence Act 2011 dealing with documentary evidence.
It remains to be mentioned that Section
83 thereof lays the ground rule for the admissibility of documentary
evidence and for the avoidance of doubt is reproduced thus;
(1)
In a proceeding where direct oral
evidence of a fact would be admissible, any statement made by a person in a
document which seems to establish that fact shall, on production of the
original document, be admissible as evidence of that fact if the following
conditions are satisfied—
(a)
if the maker of the statement
either — (i) had personal knowledge of the matters dealt with by the statement,
or (ii) where the document in question is or forms part of a record purporting
to be a continuous record; made the statement (in so far as the matters dealt
with by it are not within his personal knowledge) in the performance of a duty
to record information supplied to him by a person who had, or might reasonably
be supposed to have, personal knowledge of those matters; and
(b)
if the maker of the statement is
called as a witness in the proceeding:
Provided that the
condition that the maker of the statement shall be called as a witness need not
be satisfied if he is dead, or unfit by reason of his bodily or mental
condition to attend as a witness, or if he is outside Nigeria and it is not
reasonably practicable to secure his attendance, or if all reasonable efforts
to find him have been made without success.
(2)
In any proceeding, the court may at
any stage of the proceeding, if having regard to all the circumstances of the
case it is satisfied that undue delay or expense would otherwise be caused,
order that such a statement as is mentioned in subsection (1) of this section
shall be admissible as evidence or may, without any such order having been
made, admit such a statement in evidence notwithstanding that –
(a)
the maker of the statement is available but is not called as a
witness; and
(b) the original document is not produced,
if in lieu of it there is produced a copy of the original document or of the
material part of it certified to be a true copy in such manner as may be
specified in the order or as the court may approve, as the case may be.
(3)
Nothing in this section shall
render admissible as evidence any statement made by a person interested at a
time when proceedings were pending or anticipated involving a dispute as to any
fact which the statement might tend to establish.
(4)
For the purposes of this section, a
statement in a document shall not be deemed to have been made by a person
unless the document or the material part of it was written, made or produced by
him with his own hand, or was signed or initialed by him or otherwise
recognized by him in writing as one for the accuracy of which he is
responsible.
For the purpose of deciding whether or not a
statement is admissible as evidence by virtue of this section, the court may
draw any reasonable inference from the form or contents of the document in
which the statement is contained, or from any other circumstances, and may, in
deciding, whether or not a person is fit to attend as a witness, act on a
certificate purporting to be the certificate of a registered medical
practitioner.