Admissibily Generally By Adedayo Samuel Adesheila – TheNigerialawyer

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.