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APPEAL ON WRONGFUL ADMISSION OF EVIDENCE

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Dictum

If the error of law is the wrongful admission of evidence, the appellant must show that, without the admission of the evidence, the decision would have been otherwise.

– Adio, JSC. UBN v. Ozigi (1994)

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THE TEST FOR ADMISSIBILITY IS RELEVANCE – WEIGHT COMES AFTER ADMISSION OF THE DOCUMENT

The test for admissibility therefore is relevance, the source by which the document has been obtained is immaterial. A document is admissible in evidence if it is relevant to the facts in issue and admissible in law. It has to be noted also that admissibility of a document is one thing, and the weight that court will attach to it is another. Relevancy and weight are in quite distinct apartments in the law of evidence. Relevancy which propels admissibility is invoked by the trial court immediately a document is tendered to determine the relevancy or otherwise of the document tendered. If the document is relevant the court admits it. Weight on the other hand, comes after admission of a document at the stage of writing the judgment. The two therefore ought not to be confused. See Dunniya v. Jomoh (1994) 3 NWLR (Pt. 334) 609 @ 617. Sadan v. State (1968) 1 All NLR 124. Dalek (Nig) Ltd v. OMPADEC (2007) 7 NWLR (Pt. 1033) 402. Abubakar v. Chuks (2001 18 NWLR (Pt. 1066) 386. Torti v. Uknabi (1984) 1 SC 370. Avong v. KRPC Ltd (2002) 14 NWLR (Pt. 788) 508. ACB Ltd v. Gwaswada (1994) 5 NWLR (Pt. 342) 25.

— A. Jauro, JCA. Chevron v. Aderibigbe (2011) – CA/L/76/04

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DESPITE RELEVANCY, DOCUMENT MAY BE INADMISSIBLE BY OPERATION OF LAW

Section 1 of the Evidence Act is to the effect that evidence may be given of the facts in issue and relevant fact. Proviso (b) thereto is categorical that the Section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force. There is no doubt that by virtue of Section 2 of the Evidence Act that a piece of evidence excluded either by the Act itself or any other legislation validly in force in Nigeria cannot be admissible in evidence. It is therefore, not only relevancy that governs admissibility. A piece of evidence may be relevant and yet could, by operation of law, be inadmissible.

— E. Eko, JSC. Kekong v State (2017) – SC.884/2014

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RETRACTED CONFESSIONAL STATEMENT IS STILL ADMISSIBLE

In ASIMI V. STATE (2016) LPELR – 40436 (SC), this Court per Rhodes Vivour JSC at Pp 14-15, para E-C stated succinctly thus: 22 “Once, an extra-judicial confession has been proved as in this case to have been made voluntarily and it is positive and unequivocal, amounting to an admission of guilt (such as the appellant’s confessional statement, Exhibit P6) a Court can convict on it even if the appellant retracted or resiled from it at trial. Such an afterthought does not make the confession inadmissible. It is desirable but not mandatory that there is general corroboration of the important incidents and not that retracted confession should be corroborated in each material particular.”

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RELEVANCY AND ADMISSIBILITY DISTINCTION

Relevancy and weight are in quite distinct compartments in our law of evidence. They convey two separate meanings in our adjectival law and not in any form of dovetail. In the order of human action or activity, in the area of the law of evidence, relevancy comes before weight. Relevancy, which propels admissibility, is invoked by the trial Judge immediately the document is tendered. At that stage, the Judge applies sections 6, 7, 8 and other relevant provisions of the Evidence Act to determine the relevance or otherwise of the document tendered. If the document is relevant, the Judge admits it, if all other aspects of our adjectival law are in favour of such admission. If the document is irrelevant, it is rejected with little or no ado. Weight comes in after the document has been admitted. This is at the stage of writing the judgment or ruling as the case may be. At that stage the Judge is involved in the evaluation or the evidence vis-a-vis the document admitted. While logic is the determinant of admissibility and relevancy, weight is a matter of law with some taint of facts.

— N. Tobi JSC. Musa Abubakar v. E.I. Chuks (SC.184/2003, 14 DEC 2007)

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