Propriety of Dispensing with the Evidence Act in Judicial Proceedings: A Review of the Appeal Court’s Recent Decision in Victor Adegboye v UBA

By Folabi Kuti SAN

Proem

The ‘exclusionary’ rules of Evidence have operated as a narrow gate through which pieces of evidence are selectively shut out, save for those which can satisfy its rigorous requirements. To be sure, the rules are well-thought-out and even more thoughtfully ‘borrowed’ from our common law ancestry; ensuring that only evidence meeting certain prescriptions, and tending to prove or disprove points in issue, are received for consideration in a judicial proceeding. Errant matters are (mostly) kept at bay, in favour of those that, in the language of practitioners, are ‘pleaded, relevant and admissible’. Indeed, narrow is the gate!

In contemporary times, a distinct viewpoint has evolved which sees evidence rules as much too rigid and mechanical to the point of undermining its utility, in some cases, to the point of commanding a near impossibility. The Supreme Court’s decision in Araka v Egbue, reported in (2003) 17 NWLR Pt 848 Pg 1 comes to mind. The matter painfully climbed the rungs of the ladder to the highest court; not as an appeal against the substantive complaint, but rather, in the famous opening line of His Lordship, Tobi JSC (now of blessed memory) rendering the lead judgment ‘on a very narrow area of adjectival law’. A matter which bears mention here is that even the narrow area of law, with respect, was construed through an equally narrow lens, i.e. certification of a public document is still required, in order to render the evidence admissible (as secondary evidence); even when the original cannot be found.

The Supreme court commended the appellant’s lawyers for urging on the court, comparable statutory provisions in India; a country possessing a shared common law heritage, and where many of our evidence rules are borrowed from in any case. But in the final analysis, upon the textual, literal language of the Evidence Act ‘but no other type.…admits of no exception’. Undoubtedly, that interpretation effectively robbed the appellant, his Lordship Hon. Justice Araka, the opportunity to tender a vital document required to prove publication of the alleged libellous material at issue, and by the same token robbed his Lordship of the opportunity to prove his case. The facts are somewhat notorious but aptly set the stage for a consideration of the present commentary. Shouldn’t a judge be empowered to depart from the strict application of the Evidence Act, especially where the justice of the case at hand demands it?

Adegboye v United Bank for Africa to the rescue?

The foregoing question, arising within a differing fact pattern, appears to have been answered in a commanding ratio in the unreported decision of the Court of Appeal, Ilorin Division in Appeal No. CA/IL/20/2021 Mr. Victor Adegboye v United Bank for Africa, delivered on April 14, 2022, regarding the propriety of the legislative work in section 12 (2) of the National Industrial Court Act 2006. The appeal arose from a judgment of the National Industrial Court of Nigeria dismissing a claim for damages for wrongful dismissal.

The judgment was challenged on a few grounds, albeit somewhat related. Suffice to say for present purposes, the relevant aspect of the proceeding concerns the finding of the Court of Appeal that there was a deserving case for the lower court to have called in aid the availing ‘default’ provision in section 12 (2) (b) of the National Industrial Court Act 2006, which allows for departure from the Evidence Act in the interest of justice. It is apt at this stage, to succinctly state the relevant facts of the case.

A certain documentary exhibit tendered and admitted as Exhibit VG14, was subsequently expunged by the lower court for non-compliance with the provision of Section 84 of the Evidence Act 2011. Curiously, the decisive document, as disclosed in the text of the judgment, appears to have had the concurrence of both parties in their respective pleadings. The claimant (now appellant) tendered a downloaded version of the document extracted from the defendant/respondent’s website. Under cross-examination, he confirmed the position.

On the resolution of the vexed issue under reference, two marked statements of the Hon. Justice K.I Amadi PhD, JCA, who gave the leading judgment (and, with whom Ndukwe-Anyanwu, Akeju JJCA agreed) is worth reproducing:
‘It is important to note that both parties pleaded that document and frontloaded it. The Appellant tendered his copy which was received and marked as exhibit VG14, while the Respondent refrained from tendering it. The Respondent pleaded it in paragraph 4(c) of her Statement of Defence see pages 123 – 124 of the record. The copy attached by the Respondent shows that it was downloaded through an email address adetunbiangco@gmail.com with the phone numbers clearly written. Thus, both parties agreed that the document is in existence. Both parties pleaded it and pleaded to rely on it. Also, both parties front-loaded it. And the document is very crucial and relevant for the proper determination of this case.’ (pg. 17)

The resolution, at pp.19-20 of the text of the judgment: ‘In view of the foregoing, I hold that section 12(2) of the National Industrial Act 2006 ought to apply to this case and it is hereby applied. The lower court ought to have departed from the provisions of section 84 of the Evidence Act 2011 which is hereby departed from. Consequently, the order of the lower court discountenancing and expunging the said exhibit VG14 is hereby set aside, the said exhibit VG14 is to be given its probative value. This issue is consequently resolved in favour of the Appellant and against the Respondent.’

Commentary
Adegboye v UBA, is a remarkable decision for more reasons than one. First, is a reaffirmation that the overriding consideration of the interest of justice offers latitude to Judges of the NICN, per the court’s establishment statute, to admit or exclude any evidence contrary to the provision of the Evidence Act, 2011. This is a departure from what the selfsame Court of Appeal (howbeit a different panel) held in SEC v Abilo Uboboso unreported Suit No. CA/A/388/2013; judgment delivered on 21st December 2016.

In Adegboye’s case, the intermediate Court pointedly clarified that its decision in Uboboso ‘did not invalidate nor diminish in any manner or form the provisions or intendment of section 12(2) of the National Industrial Court Act 2006’, even as it held (in the said decision) that ‘the provisions of section 12(2) of the National Industrial Court Act 2006 cannot operate to encumber the provisions of the Evidence Act 2011..’

With respect, the foregoing clarification in Adegboye is self-contradictory as indeed, the Court of Appeal in Uboboso, in a diametrically-opposed position on the applicability of the Evidence Act to proceedings at the Industrial Court, pointedly invalidated the intendment of section 12(2) of the NICN Act when the Court in that appeal (empanelled of my lords Aboki, Ige, Mustapha JJCA) held emphatically, per Ige JCA (in the lead) at page 25 of the judgment, that: ‘What I am, saying is that the National Industrial Court is duty-bound to enforce and ensure the observance of the provisions of the Evidence Act’.

Section 12(2) of the National Industrial Court of Nigeria (NICN) Act 2006 provides that the NICN may regulate its procedure and proceedings as it thinks fit; and although it shall be bound by the Evidence Act, it may depart from it in the interest of justice. In Uboboso, the National Industrial Court of Nigeria admitted in evidence public documents that were not certified on the ground that section 12(2) permitted the Court to depart from the Evidence Act.

On appeal, the Court of Appeal considered, in the main, the provision of section 256(1) of the Evidence Act 2011 to the effect that Evidence Act 2011 shall apply to all judicial proceedings in or before any Court established in Nigeria, and concluded that the National Industrial Court was duty-bound, always, to enforce the Evidence Act; notwithstanding the provision of its establishment statute permitting a departure. The Court (in Uboboso), in an oblique reference as to the age of legislation, determining which is superior, reasoned that the Evidence Act 2011 was later in time than the NICA 2006.

Applying the law so declared to facts of the appeal, the Court in Adegboye perceptibly called attention to its earlier flawed position in Uboboso, identifying four major grounds which, had they been availed in Uboboso, would have resulted in a different decision regarding the intendment of section 12 (2) NICA. In a well-argued passage of the judgment, my Lord Amadi JCA called attention to the following:

‘Firstly, granted that the Evidence Act 2011 in the explanatory note as well as in section 256 made it clear that the new Evidence Act in repealing the old one ‘shall apply to all judicial proceedings in or before Courts in Nigeria’. Section 4(2) (b) of the Interpretation Act Cap. I23 LFN 2004, provides that where an enactment is repealed and another enactment is substituted for it, then any reference to the repealed enactment shall, after the substituted enactment comes into force, be construed as a reference to the substituted enactment. It should be noted that by section 1 of the Interpretation Act, the Interpretation Act “shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question”.

Secondly, section 2 of the Evidence Act 2011 itself, provides that ‘for the avoidance of doubt, all evidence given in accordance with section 1 shall unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which this Act applies.
The proviso to section 2, provides that the admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under the Evidence Act. The implication is that section 2 acknowledges that there are existing laws that exclude the application of even the Evidence Act 2011.

Thirdly, section 3 of the Evidence Act 2011, provides that “Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria”. A fortiori, if another legislation makes any evidence inadmissible, the intention of the legislature in that regard must be respected. This means that section 3 must be read to mean nothing in this Act shall prejudice the admissibility or otherwise that is to say; inadmissibility of any evidence that is made admissible or inadmissible by any other legislation validly in force in Nigeria.

Fourthly, section 12(2) of the National Industrial Court Act 2006 is not delimited by time or date. It talks of “Evidence Act”, not “Evidence Act 1990 or 2004”. Therefore, the notion that the Evidence Act 2011 is subsequent to the National Industrial Court Act 2006 is because the National Industrial Court Act was passed in 2006, it cannot be said that the Evidence Act 2011 was contemplated under it, and cannot really hold ground as the National Industrial Court Act 2006 simply talks of the “Evidence Act”.

Even if section 12(2) of the National Industrial Court Act were delimited by time or date, section 4(2) (b) of the Interpretation Act took care of the problem. With very due respect, had the attention of this court been drawn to the foregoing factors certainly this Court would have held otherwise, therefore; I maintain that section 12(2) is extant and applicable at the National Industrial Court. In view of the foregoing, I hold that section 12(2) of the National Industrial Act 2006 ought to apply to this case and it is hereby applied”

Instructively so it would seem in Adegboye’s, the latest on the point in issue, the Court of Appeal has departed from its position in Uboboso. The Court now holds, and firmly too, that the Industrial Court, a specialized court, has by the clear provision of section 12 (2) been statutorily endowed with the latitude, within set parameters, to depart from the provisions of the Evidence Act. More than anything else, the potency and considerable logic in the argument as to the converse of section 3 of the Evidence Act 2011 lend a strong wicket. That is to say, nothing …. shall prejudice the admissibility or otherwise that is to say; inadmissibility of any evidence that is made admissible or inadmissible by any other legislation validly in force in Nigeria. That ‘other legislation’, referentially, is the NICN Act.

This is no doubt, a welcome development. One may now be inclined to assert, and favourably, that the law of Evidence; eminently an adjectival law regulating trial of facts, should occupy no higher position in the dispensation of justice than, as a ‘handmaiden of justice’. Consequently, judges should be statutorily enabled to moderately deploy its provisions strictly to attain the exigencies of justice. That is, to depart from it in deserving cases, with the overriding interest of justice; and not mere technicalities being the signpost.

One is also not unmindful that while this may be easily achievable in the federal courts; by enacting similar provisions in the establishment statutes (Evidence, being prescribed within the exclusive legislative competence of the National Assembly), the situation differs in the State High Courts. State Houses of Assembly, not having Evidence within their legislative competence (Benjamin v. Kalio (2018) 15 NWLR (Pt 1641) 38), may not validly entertain such insertion in the established laws of the superior courts of records within their domain.

Since it is a statute of uniform application, however, the Evidence Act may be amended to imbue the courts to which the Act applies, with discretion to apply the overriding interest of justice principle in deserving cases. More pointedly, in all our superior courts, unless it can be shown that upon the admission of seemingly inadmissible evidence prejudice would occasion the opposing side, a piece of evidence should generally be admitted. Ascription of probative value by the Judge, would then generally replace the ‘sifting’ or ‘gate-pass’ function which the Evidence Act has hitherto discharged.

Admittedly, this commentary would be incomplete without a consideration of the contrary view. If the decidedly narrow straits of evidentiary standards are flung wide, would the effect not be akin to unleashing a floodgate of the good, bad and ugly under the guise of the ‘’overriding interest of justice”? The Supreme Court has expressed a similar concern in Araka v Egbue (Supra) when His Lordship Tobi JSC (of blessed memory), in an oblique obiter, lamentably called attention to the sophisticated technological age which makes documents vulnerable to manipulation.

It bears stating that the Evidence Act is a modern piece of legislation, more in name than in substance. As enacted, it remains largely a codification of the Common Law as of 1872, providing inspiration for the Indian Evidence Act which we, in turn, ‘borrowed’ from, wholly. Arguably, only cosmetic changes have occurred in many of its parts since its introduction into Nigeria in 1945, even with subsequent repeals/amendments.

Take, for instance, the revolutionary provisions on the admissibility of computer-generated evidence, occurring for the first time in the 2011 Act. In practice, this may not be quite so watertight as to rule out manipulated documents – thus leaving the gate slightly ajar. That is, if the rote motions of tendering a ‘certificate of compliance to confirm that the ‘computer is in perfect order’ etc. as often occurs in many trial proceedings, is any indication.

Overall, in an age when advocacy for substantive justice over technical justice is at an all-time high, the judex should be endowed with greater latitude in applying adjectival rules of Evidence. This may be in the hue of statutory enablement such as that contained in section 12 of the NICN Act. It also may be in the form of a demonstrable concern for substantive justice triumphing over technical justice, or relaxation of the strict interpretation accorded. In Tabik Investment Ltd v GTB Plc (2011) 17 NWLR (Pt 1276) 240, the Supreme Court allowed an otherwise inadmissible public document to be taken back for proper certification, nay compliance.

The courts have a role to play and indeed have been alive to this role in dealing with some of the gaps or injustices that may otherwise arise when the hard print of the Evidence Act is given too strict an interpretation. For instance, the Evidence Act contains elaborate provisions as to the taking of oral evidence and the examination of witnesses; now often read along with the frontloading innovations in many of the High Court (Civil Procedure) Rules.

However, there is still a gap as to the recall of witnesses; a lacuna which did not escape the attention of the Court of Appeal in Onwuka v Owolewa (2001) 7NWLR (pt.713) 695 CA when Onalaja JCA (now of blessed memory) remarked thus at page 712, paras. B-C: “It is pertinent to state that the Evidence Act regrettably has no provision to recall a witness, one would have expected the filling of this gap when the Laws of Nigeria was reviewed in 1990, so one hopes the Law Reform Commission shall pick up the gauntlet to correct the lacuna and not to continue to resort to the common law of England.” Case law has nevertheless evolved stipulating the conditions for recalling a witness.

Suffice to say that the 2011 Act still does not contain a provision for to recall of witnesses. Just as Section 97 (2) (c) of the repealed Evidence Act, which buckled under the narrow interpretation in Araka v Egbue (supra) is still in the exact wording of Section 90(1) (c) of the extant Evidence Act. And thus, Araka v Egbue is still of binding precedent on the certification of public documents.

In a few other cases, the interpretation of the Evidence Act is too inflexible to accommodate present-day realities not contemplated by a 1945 legislation. To illustrate, rather too frequently, there is a need for a matter that is part-heard, to be taken over by another judge of the Court. The inflexible rule is that it is a Judge who hears a matter from trial to the end that must be the one to write a judgment. A well-known rationale is that the Judge can evaluate the honesty (or, otherwise) of the witness(es) because he sees, hears, and observes the demeanour of the witnesses.

There are two aspects to the critique here. Any Judge may ascribe probative value to documentary evidence already tendered in evidence prior to his taking over the proceedings. The same Evidence Act provides that improperly received evidence may be expunged at the point of writing the judgment. The second criterion is the harder nut to crack though. The inflexible rule is that it is the Judge who has had an opportunity of studying the demeanour of witnesses.

Even in a day and age when technological improvements have enabled virtual hearings, there are new limitations which must be addressed, regarding a judge’s ability to study the demeanour of those entering his courtroom whether as litigants, witnesses, spectators, etc. This includes, for instance, where new practice directions insist that all coming into the courtroom wear masks to protect public safety. Pray, how does a Judge study the demeanour of Mr. “Lagbaja”, CW1?

In conclusion, there can be no doubt that Adegboye’s case has further tipped the scale with regard to entrenching the NICN’s incidental and inherent powers to adopt rules governing its process and practice, and for the orderly conduct of its business. It is hoped that all other superior courts of record would be so enabled with regard to discretionary powers on the applicability of the Evidence Act. The judge is ultimately best placed, by the combined virtues of rigorous legal training, and (presumed) impartial disposition to determine whether the evidence before him is both admissible in the interest of doing substantive justice and deserving of weight in aiding him to come to a fair and just conclusion.

Folabi Kuti SAN is a Partner in the law offices of Perchstone & Graeys.