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ORAL EVIDENCE MUST BE DIRECT – SECTION 126 EVIDENCE ACT 2011

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Dictum

It is correct, as submitted, that Section 126(a)-(d) of the Evidence Act, 2011 provides inter alia that “oral evidence must, in all cases whatever, be direct”. The rationale for the rule can be said to be: (1) The unreliability of the original maker of the statement who is not in Court and not cross-examined; (2) The depreciation of the truth arising from repetition; (3) Opportunities for fraud; (4) The tendency of such evidence to lead to prolonged inquiries and proceedings; (5) Hearsay evidence tends to encourage the substitution of weaker evidence for stronger evidence.

— J.H. Sankey, JCA. Brila Energy Ltd. v. FRN (2018) – CA/L/658CA/2017

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ORAL EVIDENCE MORE CREDIBLE IF SUPPORTED BY DOCUMENT

The position of the law is that once documentary evidence supports oral evidence, such oral evidence becomes more credible. The reasoning is premised on the fact and the law that documentary evidence serves as a hanger from which to assess oral testimony.

– Rhodes-Vivour, JSC. Ukeje v. Ukeje (2014)

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WHERE ORAL EVIDENCE IN PRIOR TRIAL MAY BE USED

Ariku v. Ajiwogbo (1962) All NLR (Pt. 4) 630, Ademola CJF (of blessed memory) delivering the judgment of the Supreme Court stated the law as follows:- “This court has frequently directed attention to the practice, now not uncommon of making use of evidence of a witness in another case as if it were evidence in the case on trial. As was pointed out in Alade v. Aborishade (1960) 5 FSC 167 at 171, this is only permissible under section 33 or 34 of the Evidence Act. Where a witness in a former case is giving evidence in a case in hand, his former evidence may be brought up in cross-examination to discredit him if he was lying, but evidence used for this purpose does not become evidence in the case in hand for any other purpose. There are also prerequisites to the making use of the former testimony of a witness; for example his attention must be called to the former case where such evidence was given and he would be reminded of what he had said on the occasion.”

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ORAL EVIDENCE CANNOT CONTRADICT DOCUMENTARY EVIDENCE

Having regard to the provisions of section 132(1) of the Evidence Act, oral evidence cannot be admitted to contradict, alter, add to or vary a contract or document unless such evidence falls within any of the matters that may be proved by such oral evidence by virtue of the provisos thereto. The provisos only permit evidence which will not be inconsistent with the terms of the relevant contract or document.

– Uwaifo JSC. Fortune v. Pegasus (2004)

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TESTIFYING IN NATIVE LANGUAGE IS NOT PROOF OF ILLITERACY

It is also imperative to note that the fact that a witness opted to testify in his native language, is not a conclusive evidence that he is an illiterate. He may choose to do so because he feels much comfortable expressing himself in his mother-tongue, and not because he did not know how to write or read.

– T.N. Orji-Abadua, JCA. Kabau v. Rilwanu (2013) – CA/K/179/2001

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DOCUMENTARY EVIDENCE SHOULD BE A HANGER TO ACCESS ORAL TESTIMONY

“No doubt the legal proposition that where there is oral as well as documentary evidence, documentary evidence should be as a hanger from which to assess oral testimony is a sound one.” – per Nnaemeka Agu, J.S.C. in Kimdey & Ors. v. Military Governor of Gongola State & Ors. (1988) 2 NWLR (Pt.77) 445; (1988) 1 NSCC 827, 851.

— Ogundare, JSC. Ibrahim v Barde (1996) – SC.74/1995

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NO LAW PROHIBITS RELATIONS FROM TESTIFYING IN A CRIMINAL TRIAL

There is no law, it should be pointed out, which prohibits relations of the victim of a crime or otherwise from testifying for the prosecution in a case against an accused person charged in the commission of such crime. As a result, a witness cannot properly be described and treated as a tainted witness by reason only of his blood, marriage or other relationship with the victim of the crime in respect of which he testified as a witness for the prosecution.

– M.L. Garba JCA. Odogwu v. Vivian (2009) – CA/PH/345/05

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