EVIDENCE ACT, 2011
EXPLANATORY M E M O R A N D U M

This Act repeals the Evidence Act, Cap. E14, Laws of the Federation of Nigeria, and enacts a new Evidence Act, 2011 w h i c h applies to all judicial proceedings in or before Courts in Nigeria.

EVIDENCE ACT, 2011
ARRANGEMENT SECTION: I- GENERAL Evidence may be given of facts in issue and relevant facts. Evidence in accordance with section I generally admissible. Admissibility of evidence under other legislation. PART JI- RELEVANCY Relevance of facts forming part of same transaction. Facts which are the occasion, cause or effect or facts in issue. Motive, preparation and previous or sub-sequent conduct. Facts necessary to explain or introduce relevant facts. Things said or done by conspirator in reference to common intention. When facts not otherwise relevant become relevant. Certain facts relevant in proceedings for damages. Facts showing existence of state of mind, body or bodily feeling. Facts bearing on question whether act was accidental or intentional. Existence of course ofbus.ness. when relevant.
PART PART

OF SECTIONS

o 3 4 5 6 7 8 9 ]0 II

I::: jJ HI·- RELEVANO: AND ADMISSlIllLITY

OF C~;j{TA{N EVJnPWE

14 ]5 J6 17 [8 J9 20 21 22 23 24 25 26

Discretion to exclude improperly obtained evidence. Matters court to take into account under section ]4. What customs admissible. Judicial notice of custom. Evidence of customs. Relevant facts as to how matter alleged to be custom understood .. Admission defined. Admission by privies. Admissions by persons whose position must be proved as against party to suit. Admissions by persons expressly referred to by party to suit. Proof of admissions against persons making them, and by or on their behal C When oral admissions as to contents of documents are relevant. Admissions in civil cases, when relevant.

27 28 29 30 3I 32 33 34 35 36

Admissions 110t conclusive proof; but may be stop. Confession defined. When confession is relevant. Facts discovered in consequence of information given by defendant. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc. Evidence in other proceedings amounting to a confession is admissible. What evidence to be given when statement forms part of a conversation, document, book or series of letters or papers. Weight to be attached to admissible statements. Acts of possession and enjoyment of land may be evidence. Evidence of scienter upon charge of receiving stolen property. I'ART IV - HEARSAY, OPINION AN]} CHARACTER EVIDENCE: RICLEVANCE
AN]} ADMISSIBILITY

37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 S4 55 56

Hearsay defined. Hearsay rule. Statements by persons who cannot be called as witnesses. Statements relating to cause of death. Statements made in the course of business. Statement against interest of maker with special knowledge. Statements of opinions as to public right or custom and matters of general interest. Statements relating to rile existence of a relationship. Declarations by testators. Admissibility of certain evidence for proving, in subsequent proceeding, the truth of facts stated in it. When statement made under any criminal procedure legislation may be used in evidence. Statement of defendant at preliminary investigation or coroner's inquest. Admission ofwritten statements of investigating police officers in certain cases. Absence of public officers. Statements made in special circumstances entries in books of account. Entry in public records made in performance of duty. Statements in maps, charts and plans. Statement as to fact of public nature contained in certain acts or notifications. Certificates of specified government officers to be sufficient evidence in all criminal cases. Certificates of Central Bank officers as evidence in criminal cases.

57

58 59 60 61
62 63 64

Service of certificates on other party before hearing, Genuineness of certificates to be presumed, Previous judgments admissible to bar a second suit or trial. Admissibility of certain Judgments in certain jurisdictions, Admissibility and effect ofjudgments other than those mentioned

in section

60,
Judgment, etc, other than those mentioned in sections 59 to 61, when admissible, Conviction as evidence in civil proceedings, Fraud or collusion in obtaining judgment, or non-jurisdiction of court, may be proved, Judgment conclusive in favour of judge, Family or communal tradition admissible in land cases, Opinion inadmissible except as provided in this Act. Opinions of experts, when admissible, Opinions as to foreign law, Opinions as to customary law and custom, Facts bearing upon opinions of experts, Opinion as to handwriting, when admissible, Opinion as to existence of "general custom or right" when admissible, Opinions as to usages and tenets, when admissible, Opinion on relationship, when admissible, Grounds of opinion when admissible, Character defined, In civil cases, evidence of character generally inadmissible. Character as affecting damages, In libel and slander, notice must be given of evidence of character, In criminal cases evidence of good character admissible, Evidence of character of the accused in criminal proceedings,
PAHT

65
66

67
68

69
70

7] 72 73
74

7S 76 77
78 79 80 81 82 83 84

V --

DOCUMENTAHY

EVIDENCE

85
86 87 88 89 90 91 92

Admissibil ity of documentary evidence as to facts in issue, Admissibility of statement in document produced by computers, Proof of contents of documents. Primary evidence. Secondary evidence, Proof of documents by primary evidence, Cases in which secondary evidence relating to document. Nature of secondary evidence admissible under section 89, Rules as to notice to produce. Proof that bank has made returns or been duly licensed,

93 94 9S 96 97 98 99 100 101 102 103 104 105 106 107 108 109 J 10 J 1J I 12 113 I )4 115 J J6 ] ]7 1] 8 I 19 120

Proof of signature and handwriting and electronic signature. Identification of person signing a document. Evidence of sealing and delivery of a document. Proof of instrument to the validity of which attestation is necessary. Admission of execution by part to attested document. Cases in which proof of execution or of handwriting unnecessary. Proof when attesting witness denies the execution. Proof of document not required by law to be attested. Comparison of signature, writing, seal or finger impressions with others admitted or proved. Public documents. Private documents. Certified copies of public documents. Proof of documents by production of certified copies. Proof of other official documents. COUltmay order proof by affidavit. Affidavit to be filled. Affidavit sworn in Nigeria. Proof of document not required by law to be attested. Proof of seal and signature. Affidavit not to be sworn before certain persons. Affidavit defective in form. Amendment and re-swearing of affidavit. Contents of affidavits. Conflicting affidavits, Form of affidavits. Provisions as to altered affidavit. Jurat. Declaration without oath may be taken.
PART VI -PROOF

121 122 123 J 24 125 126 127

Proofoffacts. Facts of which COUltmust take judicial notice need not to proved. Facts admitted need to be proved. Facts of common knowledge need not be proved.
PART VII ORAL EVIDENCE AND THE INSPECTION OF REAL EVIDENCE

Proof of facts by oral evidence. Oral evidence must be direct. Inspection when oral evidence refers to real evidence.
PART VIII .EXCLlJSION OF ORAL BY DOCUMENTAHV EVJl)ENCE

128
129 130

Evidence of terms of judgments, contracts, grants and other dispositions of property reduced to a documentary form. Evidence as to interpretation of documents. Application of this Part.

P ART IX 131 ]32 133
]34

PRODUCTION AND EFFECT

os EVll)ENCE

135 136 137
]38

]39
]40 ] 41

]42
143 ]44

]45
146

i-17

148 149
]50
]51 152

]53
154 155
156

157 158

Burden of proof. On whom burden of proof lies. Burden of proof in civil cases. Standard of proof in civil cases. Standard of proof where comm ission of crime in issue and burden where guilt of crime, etc. asserted. Burden of proof as to particular fact. Standard of proof where burden of proving fact, etc. placed on defendant by law. Burden of proving fact necessary to be proved to make evidence admissible. Burden of proof in criminal cases. Proof of facts especially within knowledge. Exceptions need not be proved by prosecution. Burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent. Burden of proof as to ownership. Proof' ofgood faith in transactions where one party is in relation of active confidence. PART X -- PRESUMPTIONS AND ESTOPPEL Rules as to presumptions by the court. Presumption as to genuineness of certified copies. Presumption as to documents produced as record 0 f evidence. Presumption as to gazettes, newspapers, Acts of the National Assembly and other documents. Presumption as to document admissible in other countries without proof or seal or signature. Presumption as to powers of attorney. Presumption as to public maps and charts. Presumption as to books. Presumption as to telegraphic and electronic messages. Presumption as to due execution of documents not produced. Presumption as to handwriting, etc. in documents twenty years old. Proper custody defined. Presumption as to date of documents. Presumption as to stamp of a document.

159 160 161 162 163 164
165

166 167 168 169 170 171 172
J73

174 175 176 177

in
179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194

Presumption as to sealing and delivery. Presumption as to alternative. Presumption as to age of parties to a conveyance or instrument. Presumption as to statements in documents twenty years old. Presumption as to deeds of corporation. Presumption of death fr0111 seven years absence and other facts. Presumption of legitimacy. Presumption of marriage. Court may presume existence of certain facts. Presumptions of regularity and of deeds to complete title. Estoppel. Estoppel of tenant; and of licensee of person in possession. Estoppel of bailee, agent and licensee. Estoppel of person signing Act of lading. Judgment conclusive of facts forming ground of judgment. Effect of j udgment not pleaded as estoppel. PART XI - WITNESSES Who may testify. Dumb witnesses. Cases in which banker or officers representing other financial institutions not compellable to produce books. Parties to civil suits and their wives or husbands. Competence in criminal cases. Competence of person charged to give evidence Comment on failure by defendant to give evidence. Evidence by husband or wife, when compellable. Witness not to be compellable to incriminate himself. Production of title deeds or other documents of witness not a party. Production of documents which another person could refuse to produce. Evidence by spouse as to adultery. Communications during marriage. Compellability, of justices etc. or the persons before whom the proceeding is being held. Restriction on disclosure as to source of information in respect of commission of offences. Evidence as to affairs of State. Official communication. Professional communication between client and Icgal practitioner. Section 192 to apply to interpreters and clerks. Privilege not waived by volunteering evidence.

195 196 197 198 199 200 20J 202 203 204 205

Confidential communication with legal advisers. Statements in documents marked "without prejudice". Corroboration in actions for breach of promise of marriage. Accomplice. Co-defendant not an accomplice. Number of witnesses. Treason and treasonable offences. Evidence on charge of perjury. Exceeding speed limit. Sedition.
PART

XII

-TAKING

OF ORAL EVIDENCE AND EXAMINATION

OF

WITNESSES

206 207 208 209 2JO
2J I

2J2
213
214

215
::16

217 218 219 220
221

222
223

224

225 226
227 228

229 230

Oral evidence to be on oath or affirmation. Witness to be cautioned before giving oral evidence. Absence of religious belief does not invalidate oath. Cases in which evidence not given upon oath may be received. Unsworn evidence of a child. Order of production and examination of witnesses. Court to decide as to admission of evidence. Ordering witnesses out of court, Preventing communication with witnesses. Examination-in-chief, cross-examination and re-examination. Order and direction of examination. Cross-examination by co-defendant ofprosecution witness. Cross-examination by-co-defendant of witness called by a defendant. Production of documents without giving evidence. Cross-examination of person called to produce a document. Witnesses to character. Leading question. Evidence as to matters in writing. Question lawful in cross-examination. Court to decide whether question shall be asked and when a witness may be compelled to answer. Question not to be asked without reasonable grounds. Procedure of court in case of question being asked without reasonable grounds. Indecent and scandalous questions. Questions intended to insult or annoy. Exclusion of evidence to contradict answers to questions testing veracity. How far a party may discredit his own witness.

231 232 233 234 235
236

237 238 239
240

241
242

243 244 245
246

247 248 249
250

251

Proof of contradictory statement of hostile witness. Cross-examination as to previous statements in writing. Impeaching credit of witness. Special restrictions in respect of permissible evidence in trial for sexual offences. Evidence of witness impeaching credit. Questions tending to render evidence of relevant fact more probable, admissible. Former statements of witness may be proved to show consistency. What matters may be proved in connection with proved statement relevant under sections 40 t050. Refreshing memory. Testimony to facts stated in document mentioned in section 239. Right of adverse party as to writing used to refresh memory. Production of documents. Exclusion of evidence on grounds of public interest. Giving as evidence document called for and produced on notice. Using, as evidence a, of document production of which was refused on notice. Judge's power to put questions or order production of documents, etc. Power of assessors to put questions. PART XII] -- EVIDENCE OF PREVIOUS CONVICTION Proof of previous conviction. Proof of previous conviction outside Nigeria. Additional mode of proof in criminal proceedings of a previous conviction. PART XIV - WRONGFUL ADMISSION AND REJECTION OF EVIDENCE Wrongful admission or exclusion of evidence. PART XV SERVICE AND EXECUTION THROUGH-OUT NIGERIA OF
PROCESS TO COMPEL THE ATTENDANCE OF WITNESSES TEHRITORY, BEFORE COlJRTS OF THE STATES AND THE FEDERAL CAPITAL ABU.IA AND TilE

252
253

FEDERAL HIGH COURT

254
255 256 257 258 259

Interpretation of "Court" in this part. Subpoena or witness summons may be served in another state. Orders for production ofprisoners. PART XVI - MISCELLANEOUS AND SUPPLEMENTAL Regulations. Application. Repeal. Interpretation. Citation.

EVIDENCE
A Bill For

ACT, 2011

An Act to repeal the Evidence Act, Cap. E14, Laws of the Federation of Nigeria, and enact a new Evidence Act which shall apply to all judicial proceedings in or before Courts in Nigeria; and for related matters
Commencement

[oNAl'TED by the National Assembly of the Federal Republic of Nigeria .
PART I GENERAL

Relevant Evidence in Suits and Proceedings
Evidence may be

1. 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 as are hereafter declared to be relevant, and of no others 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 i< disentitled to prove by any provision of the law for the time being in force. 2. For the avoidance of doubt, all evidence given in accordance with section 1 shall, unless excluded in accordance with this 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 specified in each case by or under this Act. 3. Nothing in this Act shall prejudice the admissibility of any evidence admissible by any other legislation validly in force in Nigeria.
PART

given of facts in issue and relevant facts

Evidence In accordance with section I gencratf admissible.

as may be

that

is made

Admissibility of evidence under other legislation

II ,-

RELEVANCY

Relevance of Facts

RC\cV(a) the fact that other property stolen within the period of 12 months preceding date of the offence charged was found or had been in his possession: and the
l.vidcncc nl:>..:ic:nlt:l upon charge 01 receiving stolen pr()pcn~
I\c\S "rp{h.'\S.'lit'l~ id](!

cnjoymcut (Of be cv.dcncc

iil)~;: l1l:-l;

(b) the fact that within the 5 years preceding the date of the offence charged he was convicted of any offence involving fraud or dishonesty. (2) The (act mentioned in subsection (i) (b) of this section may not be proved unless-·

(a) 7 days notice in writing has been given to the offender previous conviction is intended to be given: and

that proof of such

(b) evidence has been given that the property in respect of which the offender being tried was found or had been in his possession.
PARI IV--HEARSA Y, OPINION AND CHARACTER EVIDENCE: RELeVANCE AND ADMISSIBILlTV

is

Hearsay Evidence Hearsay Evidence Generally. 37. Hearsay means a statement --(a) oral or written made otherwise than by a witness in a proceeding; or
J

Icursay defined

(b) contained or recorded in a book, document or any record whatever. proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.

38. Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act. Statements made by Persons who cannot be called as Witnesses 39. Statements. whether written or oral of facts in issue or relevant facts made by a person (a) who is dead: (b) who cannot be found: (c) who has become incapable of giving evidence; or (d) whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are admissible under section 40 to 50. 40. (1) A statement made by a person as to the cause of his death, or as to any of the circumstances of the events which resulted in his death in cases in which the cause of that person's death comes into question is admissible where the person who made it believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery. (2) A statement referred to in subsection (J) of this section shall be admissible whatever may be the nature of the proceeding in which the cause of death comes into question.

Hearsay rule

Suucmeut-, h:- l'~'r~(ljl' who cannot h,' L',dkd a~ wuncssc-,

Statements relatin!:! 10 cause or death

41. A statement is admissible when made by a person in the ordinary course of business. and in particular when il consists of any entry or memorandum made by him in books, electronic device kept in the ordinary course of business, or in the discharge of a professional duty, or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind. or of a document used in commerce written or signed by him. or or the date of a letter or other document usually dated. written or signed by him: Provided that the maker made the statement contemporaneously with the transaction recorded or su SOOI1 thereafter that the court considers it likely that the transaction was at that time still fresh in his memory, 42. A statement is admissible where the maker had peculiar means of knowing stated and such statement is against his pecuniary or proprietary interest and(3) he had no interest to misrepresent

xuncmcnrs made i), the course or business

the matter

Statement aguinst interest otmakcr wuh special knowledge

the matter: or

(b) the statement, if true, would expose him to either criminal or civil liability, 43. (I) A statement is admissible when such statement gives the opinion of a person as to the existence of any public right or custom or matter of general interest, the existence of which, if it existed, the maker would have been likely to be aware. (~) /\ statement referred to in subsection (I,l of this section shall not be admissible unless il was made before any controversy as to such right. custom or matter. had arisen. 44. (1) Subject to subsection (2) of this section. a statement is admissible when it relates ie, the existence of relationship by blood. marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, (2) A statement referred to in subsection following conditions-> (1) of this section shall be admissible under the
Starcmcrus 01 opuuon-, as to public right UI custom and maucrs or general interest

"lilll;Il1(!1l1',I'.'i,,,i;l,

the existence or a relationship

(a) that it is deemed to be relevant only in a case in which the pedigree to which it relates is in issue, and not to a case in which it is only relevant to the issue, and (b) that it must be made by a declarant shown to be related by blood to the person to whom it relates, or by the husband or wife of such a person: Provided that=(i) a declaration by a deceased parent that he or she did not marry the other parent until after the birth of the child is relevant to the question of the paternity of such child upon any question arising as to the right of the child to inherit real or personal property under any legislation; and

(ii) in proceeding fur the determination of the paternity of any person. a declaration made by a person who. if an order were granted, would stand towards the petitioner ill any of the relationships mentioned in paragraph (h) of this subsection, is deemed relevant to the question of the identity or the parents of the petitioner; and must be made before the question in relation to which it is to be proved had arisen. but it does not cease to be admissible because it was made for the purpose of preventing the dispute from arising. (c) that the statement

45. (1) The declarations of a deceased testator as to his testamentary content of his will, arc admissible when--

intentions

and as to the

Dcclaranous rcsrators

b~

(a) his will has been lost and when there is question as to what were its contents: or (b) the question is whether an existing will is genuine or was improperly or (c) the question is whether any and which of more existing constitute his will. documents obtained:

than one

(2) In the cases mentioned in subsection (1) of this section. it is immaterial declarations were made before or after the making or loss of the will.

whether

the

4(). (I; Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it is admissible for the purpose of proving in a subsequentjudicial proceeding. or in a later stage of the same judicial proceeding the truth of the facts which it states. when the witness cannot be called for any of the reasons specified in section 39. or is kept out ofthe wav by the adverse party: Provided that .'\dllli~~ihiili> "j

vcrttur-

L", ;Li":IIL'L'

JPI

;"g. m "'"""",.,,, procccdinu. the truth of fiU.':b slated in il

r''''

(a) the proceeding was between the same parties or their representatives

in interest: to cross-

(b) the adverse party in the first proceeding had the right and opportunity examine; and (c) thc questions proceeding. in issue were substantially the same ill the first as in the second

(2) A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor the defendant within the meaning of this section.

and

47. A statement in accordance with sections 290 and 291 or section 3J9 of the Criminal Procedure Act. may afterwards be used in evidence on the trial of any person accused of all offence 10 which the same relates, if the person who made the statement cannot be called for any of the reasons specified in section 39, and if reasonable notice of the intention to take such statement was served upon the person against whom it is to be read in evidence and he had, or might have had, if he had chosen to be present, full opportunity of cross-examining the person making the statement. 48. An\ statement made by a defendant inquest may be given in evidence. at a preliminary investigation or at a coroner's

When snncmcnr made under ,IllY crunuml procedure legi.~I