Admissibily Generally By Adedayo Samuel Adesheila

The rules that governs admissibility of evidence is provided for under Evidence Act 2011, Section 1 of the Act stated thus:

Evidence may be given in any suit or proceeding of the existence or non-existence of very fact in issue and of such other facts as are hereafter declared to be relevant, and of no others:

Provided that:-

• 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
• This section shall not enable any person to give evidence of a fact which is disentitled to prove by any provision of the law for the time being in force.

The law guiding admissibility of evidence generally is relevancy. The cardinal question has always been that is the evidence relevant to the fact in issue, and also certain evidence might be relevant to the fact in issue but same is excluded either by virtue of Section 2 of the Evidence Act 2011, or any other legislation validly in force in Nigeria cannot be admissible in evidence. Section 2 of the Evidence Act 2011 provide thus:

For the avoidance of doubt, all evidence given in accordance with Section 1 shall, unless excluded in accordance with or any other Act, or any other legislation validly in force in Nigeria be admissible in judicial proceedings to which this Act applies:

Provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this Act.

In interpreting Section 1 of the Evidence Act 2011, the court in the case of OGU v. M. T & M. C. S. LTD. (2011) 8 NWLR (PT. 1249) 345 stated thus:

Ordinarily, the admissibility of evidence is governed by the provision of Section 6 of the Evidence Act (now Section 1 of the Evidence Act, 2011). Once a piece of evidence is relevant, it is admissible in evidence irrespective of how it was obtained. In other words, admissibility of evidence is based on relevance. A fact in issue is admissible if it is relevant to the matter before the court. In that respect, relevancy is a precursor to admissibility.

What determines admissibility is relevancy. Admissibility is a rule of evidence and it is based on relevancy. In determining the admissibility of evidence, the Court will not consider how it was obtained, rather the Court will take into consideration whether what is admitted is relevant to the fact in issue. MUSA ABUBAKAR V. E. I. CHUKS (2007) LPELR-52(SC)

Admissibility rule has spilt out in the Act is govern by relevancy and nothing as to proper custody was mentioned in the Act. The rule of proper custody should only affect the weight to be attach to an evidence and not to govern the admissibility of such evidence. Per Aderemi, J.C.A had this to say in the case of NBCI v. Int. Gas (Nig.) Ltd. (1999) 8 NWLR (Part 613) Pg 130, para A-B

“I think that admissibility should he based on relevance and not proper custody. Once a matter, be it a document or oral evidence is relevant it is admissible. Proper custody only raises issue of presumption or, to put it more clearly, the weight to be attached to the evidence. Documentary or otherwise after admission. For evidence, documentary or otherwise, to be admissible, it is sufficient that proper ground of its relevance is laid.”

The hallmark of admissibility generally is based on relevance. Once evidence is probative of the fact in issue, it is considered to be relevant and therefore admissible, because relevance determines admissibility. It is suffice to say that once a piece of evidence is relevant to the fact in issue, the court is bound to admit such evidence. See the case of HARUNA v. A.G.F. (2012) LPELR-7821 (SC).

Also in furtherance to the rules governing admissibility which first and foremost is relevance, the party leading such evidence must also plead the document and ensure it is properly tendered in the form and by the person it should be produced. See the case of BLESSING v. F.R.N (2012) LPELR-9835(CA).

A document admitted by the consent or by the court in the absence of their maker as specified under the Act, the court still has the authority and duty to consider the weight to be attached to such documentary evidence  before giving its final decision as to whether it establish the fact in issue. See the case of KAYILI v. ESLY YILBUK & ORS (2015) LPELR- SC

Section 6 of Evidence Act, 2011 is readily to come to mind on this topic; the said section provide thus:

• Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
• The conduct, whether previous or subsequent to any proceeding:
• Of any party any proceeding, or an agent to such party, in reference to any fact in issue in it or a fact relevant to it; and
• Of any person an offence against whom is the subject of nay proceedings, is relevant in such proceedings if such conduct influences or is influenced by any fact in issue or relevant fact
• The word conduct in this section does not include statements, unless those statements accompany and explain acts other than statements, but this provision shall not affect the relevancy of statements under any other section.
• When the conduct of any person is relevant, any statement made to him or in his presence and hearing which affects such conduct is relevant.

From the foregoing section it is clear that evidence may be given of either facts in issue or relevant facts from which the existence or otherwise of the fact in issue can be inferred.

In the case of NWEKE v. THE STATE (2011) FWLR (PT.40) 1595. SC. The apex court of the land stated thus:

Although proof of motive on the part of the accused in a charge of murder is not a sine qua non to his conviction for the offence, yet if evidence of motive is available, it is not only a relevant fact but also admissible under section 9 of the Evidence Act (now section 6 of the Evidence Act, 2011).

An evidence may be admissible but with little or no evidential value. The weight to be attached to an evidence is distinct from the rule that governs its admissibility. The test for the admissibility of any evidence remains its relevance to the issue at hand. KUBOR v. DICKSON (2012) LPELR-9817 (SC).

ADEDAYO SAMUEL ADESHEILA is a counsel in the law firm of Ferd Orbih SAN & Co.