Whether High Court, Court Of Appeal And Supreme Court In Their Appellate Jurisdictions Would Apply The Provisions Of Evidence Act Over Appeals From Courts That Are Not Bound To Apply Evidence Act By O.T.Olamide.

INTRODUCTION

The importance of Law of  Evidence in any Judicial system
can not be over emphasized.  The exact definition of what
evidence entails has always offered special difficulties to legal
writers.

It must be appreciated that many Scholars have made their
contributions as to what the meaning of Evidence is about .
However, this writer is only concern whether High court , Appeal
Court  and Supreme court in their appellate jurisdictions
 would apply the provisions Evidence Act over appeals from
courts that are not bound to apply Evidence Act .

Meaning Of Evidence

Oxford Advance Learner’s Dictionary New 8th Edition at page 503
, defines Evidence to mean the facts , signs or objects that make
you believe that something is true. It also defines Evidence to
mean the Information that is used in court to try to prove
something.

Professor Cross ( in his Cross on Evidence ) defines Evidence as
the Testimony , hearsay , document , things and facts which a court
will accept as evidence of the facts in issue in a given case.

Also Nigerian authors are not left out in lending their credence
as to what the meaning of evidence is all about . Akinola Aguda in
his book The Law of Evidence defines judicial evidence to mean the
means by which facts are proved in order to prove or disprove some
facts in issue.

Therefore , from the above definition , it can be said without
mincing word that the functional word distillable from examination
of evidence is fact.

Fact is defined in Section 258 of the Evidence Act ,2011 to mean
(a) anything , state of things  capable of being perceived by
the senses ; and

(b) any mental condition of which any person is conscious…

The Supreme court in the case of EMMANUEL .M.O. CHUKWUOGOR V
RICHARD OBIGIABOR OBIORA( 1987) 3 NWLR pt 61 held that in its
broad sense , Evidence encompasses and includes the means employed
for the purpose of proving a disputed facts .

Therefore , Evidence is the means of proving the truth of an
alleged fact while the Law of Evidence is the rules guiding the
admissibility of evidence in the court.

Having proferred the meaning of Evidence , the question now ,
Whether High Court , Court of Appeal  and Supreme court in
their appellate jurisdictions would apply the provisions of
Evidence Act over appeals from courts that are not bound to apply
the Evidence Act ?

The Evidence Act 2011 has specified the types of Proceedings and
the courts in which its provisions are applicable .

Thus ,the Act provides in Sections 256 as follows:

This Act shall apply to all the judicial proceedings in or
before any court established in the Federal Republic of
Nigeria…

In the light of the above provisions , the general rule is that
the Evidence Act applies to all the proceedings before the courts
established in Nigeria .

Section 6 of the 1999 Constitution establishes the Superior
courts of records in the
country.                                                   
  Besides , there are other courts which include
Magistrate/District court , Sharia/ Area Court and other Special
courts such as court martial , Election Petition Tribunal
.                                                                                                       
Court for this purpose, could also include all judges and
magistrates and except arbitrators , all persons legally authorised
to take evidence.

Ipso facto , the Evidence Act went further to exempt or limit
the application of the Act in proceedings before some of these
courts.

The exemptions and limitations are provided as follows :

… but it shall not apply to

• Proceeding before an arbitrator
• a field general court Martial ;or
• Judicial proceeding in any civil cause or matter in or
  before any Sharia court of appeal or customary court of Appeal ,
  Area court or customary court , unless any authority empowered to
  do so under the constitution , by order published in the Gazette,
  confers upon any or all Sharia court of Appeal, Customary court of
  Appeal ,Area court or customary courts in the Federal Capital
  Territory Abuja or a State , as the case may be , power to enforce
  any or all the provisions of this Act.

(2) In Judicial proceeding in any criminal cause or matter ,
in or before an Area Court , the court shall be guided by the
provisions of this Act …

Notwithstanding anything in this section , an Area court
shall , in Judicial proceeding in any Criminal cause or matter , be
bound by the provisions of Sections 134 to 140.

The Court held in the case of  DKE V NWIZI
(2013)LPELR CA /E/163/ 2011, that section 256(1)paragraph C of
the Evidence Act , 2011 expressly excludes or ousts the application
of the Evidence Act to civil causes or matters in proceedings
before customary court .Also see the case of
Latunde V Lajinfin ( 1989)5 SCNJ59.

The settled law is that the laws applicable in an appellate
court are normally the same as those that apply in the court from
which the case on appeal comes .See ONIBUDO AND ORS V
AKIBU &ORS ( 1982) SC 60.

Ipso facto , from the above settled law , one can draw a
conclusion that Evidence Act would not be applied by the Appellate
Courts over appeals from the courts which have been exempted from
applying the Evidence Act.

In the light of the above , the Supreme court held in the case
of OGUNYEMI V OJAYEMI (1987)1 NWLR pt 760 that …since
Evidence Act does not apply in Customary Court , a high court in
its appellate jurisdiction to hear appeals from the Customary court
would be in error to apply the provisions of the Act in deciding an
appeal to it from the Customary court

Thus , recently in Garkuwa Pina vs Jagaba Mai Angwa
( 2018) LPELR SC .122/ 2006 the Court of Appeal applied the
provisions of Evidence Act in determining the admissibility of an
admission made in exhibit 1. On further appeal to the Supreme court
, it was held if the Area Court is not bound to apply the
provisions of the Evidence Act , the High Court and the Court of
Appeal had no jurisdictions to apply the provisions of the Evidence
act to the decisions that emanated from the Upper Area
Court.

CONCLUSION.

In view of the above provisions of Evidence Act and Judicial
interpretation of the said provisions , High Court , Court of
Appeal and Supreme court in their appellate jurisdictions have no
jurisdictions to apply the provisions of the Evidence Act over
appeals emanating from the courts which are not bound to apply the
provisions of the Evidence Act.

However, they are mandatory to observe the rules of
Natural  Justice and Fairness . See Garkuwa Pina v
Jagaba Mai Angwa supra.

O.T.Olamide, is a 400level Law student of Ahmadu Bello
University ,Zaria, Kaduna State.

Phone No: 08144856315, Email : [email protected]^[1]

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