Much as it worth commending the Nigerian Law Makers for their in depth thought of amending the Evidence Act in 2011 which repeals the Evidence Act Cap. E14, Laws of the Federation of Nigeria 1990 and applies to all judicial proceedings in or before Courts in Nigeria except Customary Court, it is pertinently important to surgically examine some of the amended provisions in the said Act which came into force on 3rd day of June, 2011, their applications in courts and their effect on litigants and judges.

Of all the amended provisions in the Evidence Act 2011 is the amended provision of section 33(1) of the Evidence Act Cap. E14, Laws of the Federation of Nigeria 1990 which the lawmakers re-enacted as section 39 in the Evidence Act under the heading ‘Statements made by persons who cannot be called as witnesses’.

It is fundamentally important to say at this juncture that in the Evidence Act Cap. E14, Laws of the Federation of Nigeria 1990, the provisions of section 33 were with sub-sections alphabetically made as letters ‘a-e’. The then provision of section 33(1)(a-e) of the Evidence Act Cap. E14, Laws of the Federation of Nigeria 1990 are re-enacted in the Evidence Act 2011 as sections 40, 41, 42, 43 and 44 respectively.

It is also of great important to say here that the introductory provision made in section 33 of the Evidence Act Cap. E14, Laws of the Federation of Nigeria 1990 which reads ‘Statements, written or verbal, relevant facts made by a person who is dead are themselves relevant fact in the following cases-’ is the provision re-enacted as section 39(a-d) in the Evidence Act 2011 with the heading ‘Statements by persons who cannot be called as witnesses’ which is the main focus in this piece.

It is equally important to unequivocally say here that the purpose for which this piece is written is not to explain the provision of section 39 of the Evidence Act but rather to critically examine the use of the said provision vis-à-vis the admissibility of certain evidence for proving the truth of facts stated in the said evidence which could be oral or documentary in subsequent proceeding provided in section 46 of the Evidence Act 2011 and the resultant likelihood danger in the permissiveness of its use in Nigerian Courts.

It is no gainsaying that the invocation of the provision of section 39 of the Evidence Act 2011 is without making reference to provision of section 46 of the same Act whose provision is for the admissibility of the statements (written or oral forms) of persons who cannot be called as witness earlier given as evidence in previous proceedings to prove the truth of facts stated in it in the subsequent proceeding in Nigerian Courts.

It must be said here that the permissiveness of the use of such evidence in subsequent proceedings is subject to three further conditions provided under section 46(1) of the Evidence Act 2011 which provides exception to the hearsay rule for the admissibility of certain evidence for proving, in subsequent proceeding, the truth of facts stated in it. These conditions are reiterated in the Court of Appeal case of AbdulKareem & Ors vs. Shinkafi & Ors (2008) LPELR-3555 thus:

that both the earlier and the later proceedings were between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross examine (irrespective of whether the right was exercised or not); and
that the question in issue was substantially the same in the first as in the second proceedings.
It is the writer’s observation that the usual practice of many lawyers in Nigeria on the use of certain evidence for proving, in subsequent proceeding, the truth of facts in the said evidence is filing application for leave of court to use such evidence and accompanying a certified true copy of the Record of that proceedings with the said application.

It is the writer’s stand that cumulative reading of section 39 and 46 of the Evidence Act 2011 as well as the provisions of the Rules of Courts evinced no provision for filing application for leave to use the said evidence in the subsequent proceedings. The writer stand corrected.

It is the writer’s submission that not only that the Rules of Court are rules of procedure which provides detailed steps a party and his counsel are to take in the hearing of his case; the provision on the filing of application provided for under the Rules of Court is clear and need no further judicial interpretation. For easy reference, the provision of Order 39 of High Court of Ogun State (Civil Procedure) Rules 2014 which is on all fours the same with the provision in many State High Courts (Civil Procedure) Rules in Nigeria on filing of application is hereunder quoted thus:

‘Where by the rules any application is authorized to be made to a judge, such application shall be made by motion which may be supported by affidavit and shall state under what rule of Court or Law the application is brought’

Flowing from the above provision is the deductible fact that for any application to be made to the court for any relief, such application must be an application authorized by the rules of the Court. The germane question to ask is: ‘is there any provision in the rules of Court of any State High Courts in Nigeria authorizing a party to file an application for use of certain evidence for proving, in subsequent proceeding, the truth of facts in the said evidence?’ The answer is Negative. The writer stand corrected.

It must be said here that the writer is not oblivious of the provision of Order 32 rule 18 of the Rules of Court in many State High Courts (Civil Procedure) Rules (though the Order and rule number for the said provision might be different; there is provision on evidence in proceedings subsequent to trial in all State High Courts (Civil Procedure) Rules) but there is no such application authorized in the said provision. For easy reference, the provision of Order 32 rule 18 of the High Court of Ogun State (Civil Procedure) Rules 2014 is hereunder quoted thus:

‘Subject to the provisions of Section 46 of the Evidence Act, all evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter.’

It is the writer’s further stand that the permissive word ‘may’ in the above provision which many lawyers used to hang on as the basis for their filing application for their clients to use certain evidence for proving, in subsequent proceeding, the truth of facts in the said evidence does not depict any authorized application and filing application on basis of the said word ‘may’ is a misapplication of the rule.

Fortifying the writer’s stand, the writer submits that if the draftsmen meant that an application should be made for use of certain evidence for proving, in subsequent proceeding, the truth of facts in the said evidence, the draftsmen would have provided for such as they did in the provision for amendment under Order 24 wherein the word ‘may’ also used. For easy reference, the provision of Order 24 rules 1&2 of the High Court of Ogun State (Civil Procedure) Rules 2014 goes thus:

A party may amend his originating process and pleadings at any time before the close of pre-trial conference and not more than twice during the trial but before judgment.
Application to amend may be made to a Judge. Such application shall be supported by an exhibit of the amendment and may be allowed upon such terms as to costs or otherwise as may be just’
Fortifying the writer’s submission that if the draftsmen meant that an application should be made for use of certain evidence for proving, in subsequent proceeding, the truth of facts in the said evidence, the draftsmen would have provided for such like the provision for the issuance of a pre-trial conference under Order 25 of the Rules of Court, provision for additional statement on oath or additional witness under Order 30 rule 10 of the Rules of Court. Just to mention but a few.

Fortifying further that no application is required for certain evidence for proving, in subsequent proceeding, the truth of facts in the said evidence

Is the procedure taken in the case of AbdulKareem & Ors. Vs. Shinkafi & Ors. wherein a certified true copy of pay roll records tendered in another case were tendered as documents tendered and admitted in previous judicial proceedings and which is relevant in subsequent proceedings before the court and the court rejected the said document on ground that the previous proceeding in which those documents were tendered and admitted was not mentioned.

This is also the situation in the case of Fasuba v. Adumasi & Anor (2015) LPELR -24548 (CA); Mbina & Ors Vs. Enya & Ors(2017)LPELR-43532(CA) wherein a record of previous decision of the Court was tendered and admitted as Exhibit C1 and Adekunle Vs. State (2018)LPELR-45386 (CA) wherein evidence given by a witness in previous proceeding was tendered and admitted without any objection to its tendering of the said evidence.

It is fundamentally important to submit that leave to use said certain evidence for proving, in subsequent proceeding, the truth of facts in the said evidence even if granted does not constitute an admission of the said certain evidence for proving, in subsequent proceeding, the truth of facts in the said evidence.

It is the writer’s stand that since for any evidence to be admitted or rejected in legal parlance, it must first be tendered during trial of the case; admissibility of the evidence in previous proceeding to be admitted in subsequent proceeding to prove the truth of facts in the said evidence is subject to the fulfillment of the conditions provided for under section 46 of the Evidence Act.

Fortifying the above writer’s stand is the holding of the Supreme Court in the case of Ikenyi Vs. Ofune (1985) 2 NWLR (Part 5)1@7&8 wherein Kawu JSC restated the position as follows:

‘Before the evidence given in a previous case can be received as substantive evidence of the truth of what it states, all the conditions laid down in the sub-section must be complied.’

Following the holding of the Supreme Court in the above mentioned case and flurry of authorities referred to by the Court of Appeal in Adekunle Vs. State (supra), the court in Adekunle’s case held thus:

‘The previous evidence, which the appellant seeks to expel from the appeal are Exhibits A and B, given before G.E. Olagoke, J. (PCCA) by Adeniyi Omoniyi and Adebayo Olusanya, on 31st March, 2009 and 25th January, 2010 as PW1 and PW5 respectively. The parties are consensus ad idem on the point. At the stage of tendering the documents, the defence counsel, Mr. Amole, said: I am not objecting to the tendering of the document. The appellants’ non-oppositional stance, qua counsel, is fraught with far-reaching consequence on his case. It is settled adjectival law, that a party who fails to reap/harness his right of objection to admissibility of a document during trial will forfeit that right on appeal.

It is the writer’s further stand that much as the evidence in previous proceeding is admissible in subsequent proceeding to prove the truth of facts in the said evidence subject to the satisfaction of the conditions enshrined in section 46(1)(a)-(c) of the Evidence Act 2011, the party who is desirous of taking a benefit under the canopy of the provision of section 39 must show that the said witness is dead or unfounded or incapable of giving evidence or restrained by opponent or his presence will entail an unreasonable delay or expenses. It is further behooves such party to prove that the parties in the proceeding were the same, the adverse party in the earlier proceeding had the right and opportunity to cross-examine the witness and the issues in both proceedings were the same.

It is also writer’s stand that for such party to afford himself of the use of such evidence in previous proceedings in the subsequent proceeding, the reasons specified in section 39 and conditions enshrined in section 46(1)(a)-(c) must have been pleaded as facts or averments in his pleading and backup with evidence at the trial.

Though having those reasons specified in section 39 and conditions enshrined in section 46(1)(a)-(c) stated in a supporting affidavit of an application cannot be akin to party’s pleading through which material facts on which party relies to support his claim or defence are placed before the court.

It therefore submitted that stating reasons specified in section 39 and conditions enshrined in section 46(1)(a)-(c) in the affidavit filed in support of an application cannot take place of required pleading to aver those reasons specified in section 39 and conditions enshrined in section 46(1)(a)-(c) as material facts to rely on by such party in support of his claim or defence.

It is not unknown to the writer that affidavit is evidence in a legal parlance but an affidavit is not a required statement of witness which is to accompany a writ of summons or pleadings under the rules of court and neither the witness/deponent nor the counsel can adopt same as evidence during trial.

It must be re-echoed that before the evidence given in a previous proceeding can be received as substantive evidence of the truth of what it states in the subsequent proceeding; such party must tender same in evidence during trial. This submission of the writer is fortified by the holding of the court in AbdulKareem & Ors vs. Shinkafi & Ors (supra) wherein the court held thus:

‘the compelling necessity for the application of section 34 (1) (now section 46 of the Evidence Act 2011) when documents from previous proceedings are tendered to prove the truth of the contents therein in subsequent proceedings was further observed by my learned brother Achike, JSC at pages 272-273 paras F-A.’ The underline is the writer’s for emphasis

Besides the aforementioned writer’s stands is the need for reconsideration of the permissiveness of the use of the evidence in previous proceedings in the subsequent proceeding under the law and rules of court discussed in the subsequent paragraphs under different scenario

First Scenario- Administrative decision of transferring of judges out of judicial division or movement of judges from one court to another within judicial division due to elevation of a judge to higher court or retirement of a death of a presiding judge

It is the usual and ubiquitous administrative practice in Nigerian courts especially State High Courts having a judge transferred from one judicial division to another judicial division. It is observed that once a presiding judge of a court where a matter is being heard is transferred, the parties are left with options of either applying for fiat that the case should continue to be heard by the said judge where he was transferred to or the matter starts de novo if the case has been opened and some witnesses have given their evidence before the transfer of the judge. In the latter option, if a party intends to use evidence of the deceased witness given in the previous proceedings before the transferred judge in the subsequent proceeding before the new presiding judge, the provisions of section 39 and 46 of the Evidence Act 2011 would be of use.

The writer’s stand as regards the above latter option is that determining a matter by every judge in a court demeanor of witnesses while testifying before the judge forms part of what the judge would consider in reaching his decision on the matter. How then would a new judge before whom the evidence of a witness in previous proceedings is to be used assess tone of voice, facial expressions, gestures of the witness whose evidence in previous proceedings is to be used for the new judge to determine whether or not he should believe or disbelieve the said witness’ testimony given as evidence in the previous proceedings?

It is the writer’s further stand that permissiveness of the use of the evidence of a witness in previous proceeding in the subsequent proceeding being taken by a new presiding judge is an imposition of such evidence on the new presiding judge as the admission of such evidence is guaranteed upon fulfillment of required conditions for its use. Hence, there is need to re-consider permissiveness of use of such evidence in Nigerian Courts so that new presiding judge before whom the matter is being heard would be able to have full assessment of witness’ demeanor and make proper decision on the matter.

Second Scenario- change of a counsel for whatever reason during the trial of the case

It is also in the rules of court of State High Courts that an application for a change of Legal Practitioner may be made by parties be it Claimant or Defendant. In the event that a party decides to change a Legal Practitioner who conducted the previous proceedings where the evidence sought to be used was given for whatever reason especially death of the said Legal Practitioner, permissiveness of use of the evidence of witness given in previous proceedings would prevent the new Legal Practitioner from putting his professional expertise and knowledge into use for proper conduct of the case which if he has opportunity to re-cross examine the witness whose evidence in previous proceeding is to be used would show to the court the accuracy, veracity, credibility and shake the credit of the said witness and which the previous Legal Practitioner might not have been properly done in the previous proceedings.

It is hereby conveniently convenient to conclude this piece with a call for a reconsideration of the permissiveness of the use of evidence given by a witness in previous proceedings in subsequent proceeding under sections 39 & 46 of the Evidence Act 2011 and Order 32 rule 19 of the State High Courts as doing this would give new presiding judge absolute opportunity to assess the demeanor of each witness called in every matter and arrive at a just decision on the matter.

S.O. GIWA ESQ. a.k.a pentalk (Ibadan based Legal Practitioner) [email protected], 08035224192