TYPES OF RELEVANT FACTS


1. S. 4 Evidence Act and the doctrine of res gestae:
            The term ‘res gestae’ has a Common Law origin. It refers to a collection of those other facts relevant to a fact in issue because they throw light on it as a result of their proximity to it in point of time, place or circumstances. Those set of facts so closely accompany the fact in issue so much so that they could be said to form part of the same transaction. They also help to explain the fact in issue. The underlying reason which determines the admissibility of fact as res gestae is the need to avoid fabrication of facts or facts which may mislead the court.
            At Common Law. For a statement or declaration to be held admissible as forming part of the res gestae, it must fulfill three requirements:
a. The statement must relate to the act (the facts which they accompany):
     In Agassiz v London Tramway, there was an allegation of negligence against their driver of a tram-car who was involved in an accident. Few minutes after the accident, a passenger said “This fellow’s conduct ought to be reported”. The conductor replied “He has already been reported for he has been off the line five or six times today; he is a new driver”. Evidence of the statements as part of the res gestae was rejected on the ground that they did not relate to the fact in issue; they referred to the past acts of the driver. See also R v Bliss
b. The statement must have been said by the actor:
     On the authority of R v Fowkes, it can be said that this condition is no longer valid. In that case, evidence by a third party was held to form part of the res gestae.
c. The statement must have been made contemporaneously with the act:
     This requirement is the most important of all as it appears to be the most controversial of all. The starting point is the case of R v Bedingfield. In that case, the accused was charged with murder by slitting a woman’s throat and his defence was that she committed suicide. The deceased had come out of the room where she was with the accused, with her throat slashed and she had managed to say: “Oh auntie see what Harry has done to me”. The evidence of this exclamation was excluded on the ground that the cutting of the throat was completed before the statement was made. The court seemed to have limited the scope of ‘res gestae’ to facts which occurred at the same time and place. Despite the criticisms against this decision, the courts in R v Christie and Teper v R followed the decision in Bedingfield’s case. The test adopted in these cases is what is known as the strict contemporaneity rule.
     The opportunity to restate the position of English law on the subject arose in Ratten v R. The accused was charged with the murder of his wife. The defence was that the shot was accidental as the gun went off while he was cleaning it. There was evidence of a telephone operator that at about 1.15 am a woman with distress voice had phoned from the accused’s house asking for the Police. The defendant objected to this evidence being given, saying it was hearsay and not within any of the exceptions. The Privy Council held that it was not hearsay, and even if it had been, it would have been admissible under the res gestae principle. Lord Wilberforce in an incisive manner, laid down the proximate contemporaneity test for receiving this species of evidence as res gestae. According to him, the test whether a statement is receivable as part of the res gestae is not whether it is strictly contemporaneous with the fact in issue but whether where it was not made contemporaneously, the maker had enough time to devise, contrive or concoct facts to his advantage. Thus, even if the statement was not made at the time of the incident, so far it was made soon after without the maker having enough time to devise, contrive or concoct facts to his advantage, the statement will be receivable as res gestae. The case was followed in R v Nye & Loan.
     We now turn to the Nigerian experience. The relevant provision of the Evidence Act relating to res gestae is S. 4 Evidence Act 2011 (formerly S. 7 of the old Evidence Act). The section provides:
Facts which, though not in issue are so connected with a fact in issue as to form part of the same transaction are relevant whether they occurred at the same time and place or at different times and places.” The provision seems (perhaps) to be a codification of the proximate contemporaneity rule as espoused Lord Wilberforce in the case of Ratten v R.
      The above provision has brought up two issues: (a) whether S. 4 and the doctrine of res gestae under Common Law are the same or whether S. 4 is wider in scope (b) the desirability of admitting res gestae in the Nigerian courts.
       With respect to the first issue above, the position is that S. 4 of the Act has taken care of the doctrine and even more so that the Common Law doctrine can no longer be applied except to use the cases thereon as persuasive authorities. Therefore, the provision of S. 4 is wider in ambit than the Common Law doctrine.
       As regards the second issue, it is proposed to examine some Nigerian cases in this regard. In Sule Iyanda v The State, a number of persons one night heard the deceased cry ‘Sule is killing me’ from a room. The witnesses rushed into the room at once and saw the deceased in a pool of blood. It was held that the words were admissible as forming part of the res gestae of the offence. In Udo v R, the deceased received injuries to her neck as a result of an assault committed on her by the appellant. After the injury, the appellant did all he could to treat her. The appellant sent for the wife of a neighbour who arrived to find him trying to treat her and asked them both what the matter was. The deceased said the appellant had “put his hand between her legs, carried her up, and knocked her to the ground head-long”. It was held that the statement was not part of the res gestae. In Tike v The State, the court rejected as not being part of the res gestae statements by the deceased to the effect that “Oh I have been killed, Marabode is killing me” on the ground that they were not sufficiently contemporaneous with the fact in issue. See also Okokor v The State and Ikomi v The State. It is clear from these cases that the courts have applied the strict Common Law conditions for the admissibility of res gestae. It is submitted that the doctrine of res gestae as known to the English Common Law is inapplicable in Nigeria especially where the concept is not mentioned anywhere in the Evidence Act. More so is the fact that S. 3 of the Evidence Act states that the source of Nigerian Evidence Law is the Evidence Act and any other statute in force. 
2. S. 5 Evidence Act:
            The section is to the effect that once facts are capable of explaining the cause, consequences or the event itself, they are admissible. In R v Stewart, the court admitted marks on the ground as evidence of murder. See also Isibor v The State. In R v Abadom, a window had been broken in a case of robbery. Fragments of glass were found embedded in a pair of shoes taken from the appellant’s house after his arrest. Forensic evidence of an expert showed that the glass from the window and its fragments found in the shoes of the appellant were identical. The court held that this fact showed that the appellant participated in the robbery. Also in a charge of murder, evidence that the victim was stabbed by the accused a few months before his death (less than a year) although the wound had apparently healed would be admissible as it relates to the cause of the victim’s death.
            It is important to state that evidence of hearsay is not admissible under the section. In Osude v IGP, it was held that evidence of a witness that two people went to the accused’s house to offer him bribe was hearsay and not admissible.

3. S. 6 Evidence Act:
            The section provides that any fact is relevant if it shows or constitutes a motive, preparation and previous or subsequent conduct. 
            In Jimoh Ishola v The State, the prosecution adduced evidence to show that prior to the offence the accused had always visited the scene of offence and was always involved in fights, destroying property and on one occasion he had attacked the person that was killed and stabbed him. The court admitted these facts to show that he had the motive of committing the offence. 
            In Iyaro v The State, the accused was charged with the offence of armed robbery. It was alleged that the accused driver led his passengers to a location and sounded the horn his car to attract the armed robbers. They were robbed. There was evidence that the accused followed a different route instead of the one he was instructed to follow and ignored the protest of the passengers. The court held that he drove the passengers to a pre-arranged spot. Evidence of motive was admitted in this case. 
            In Atano v A-G, Bendel, the appellant, the senior manager of a bank was accused of going to the bank’s premises and setting fire to the bank while the security officer was deliberately locked outside the premises. The court held that the accused had a motive of setting the bank on fire. The evidence of motive was accepted in this case. 
            In A-G., IRELAND v GALLAGHER, the accused was charged with murder. He had evinced an intention to kill his wife by buying a bottle of whisky which he drank before the murder. Part of his defence was that he was so drunk at the time of the murder that he was incapable of having the requisite intent to murder. The court in rejecting his defence held that the purchase of a knife and bottle of whisky showed the motive and preparation to commit murder.

4. S. 7 Evidence Act:
            Facts which are necessary to introduce or explain facts in issue are relevant. A key example here is the preliminary background in a pleading before the court. This introduces the facts in issue.

5. S. 8 Evidence Act:
            Things said or done by conspirators in reference to common intention are relevant in this regard (Enahoro v The State). But statements made by individual conspirators in furtherance of such common intention are not deemed relevant against all but the individual conspirators except it was made in their presence (R v Blake v Tye). See also Balogun v Commissioner of Police.

6. S. 9 Evidence Act (When facts not otherwise relevant become relevant):
Facts not otherwise relevant are relevant if:
a. they are inconsistent with any fact in issue or relevant fact (Anagbado v Anagbado) and
b. by themselves or in connection with other facts they make the existence or nonexistence of any fact in issue or relevant fact probable or improbable. In Akingbade v Elemosho, a plaintiff in an action for declaration of title to land, in a bid to show the identity of the disputed land sought to tender conveyances executed by the defendant in respect of adjoining land in the same layout in favor of other purchasers. The Supreme Court held on appeal that they were relevant because the conveyances sought to be tendered when considered with other facts make the identity of the land in question probable.

7. S. 10 Evidence Act:
            In proceedings in which damages are claimed, any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant. In a defamation action for example, the plaintiff can tender facts in relation to the loss he has suffered as a result of such defamatory statement.

8. S. 11 Evidence Act:
            Facts showing existence of state of mind, body or bodily feeling are also relevant.

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