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 (as he then was, 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 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) are 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 firstname.lastname@example.org with the phone numbers clearly written. Thus, both parties agreed that the document is in existence. Both parties pleaded with 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, took a diametrically-opposed position on the applicability of the Evidence Act to proceedings at the Industrial Court, 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’.
The Court in this recent decision of 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.
Instructively, 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’, reverentially, 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 (see 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 to 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 an 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 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.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 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 the 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 adapt 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.
Kuti SAN is a Partner in the law offices of Perchstone & Graeys.