If a party to a court proceeding seeks to rely on evidences which are relevant but were illegally obtained from the other party, should the court admit such evidence? Here, the courts must strike a balance between two competing interests. The first being the need to ensure due process of the law and on the other hand is the need to prevent offenders from escaping justice despite the fact that due process wasn’t followed.

The 1999 Constitution in S. 37 guarantees the right to privacy of citizens especially their home, correspondence, telephone conversation and telegraphic communication. Although this section is subject to the derogation clause under S. 45 of the aforesaid constitution, the general rule still remains that this right is adequately protected by the constitution. Under the Criminal Procedure Act (CPA), in order to search the residence of a person, a search-warrant should ordinarily be obtained. The CPA provides that the search-warrant should be executed in the presence of the owner or premises of the search. In addition, two independent witnesses must be present and the person executing the search is obliged to submit himself to a search before searching the house.
Prior to the enactment of the Evidence Act 2011, the question whether an illegally obtained evidence should be admitted was based on the discretion of the courts with the courts having recourse to the position under common law. In R v Leatham (a case used to emphasize the common law position), we find the remark made by Crompton J where he noted that “It matters not how you get it if you steal it even, it would be admissible in evidence.” The deciding factor was whether the evidence was relevant, if so, the courts would admit it. In Musa Sadau v The State, the accused persons were alleged to be involved in the illegal printing and sale of vehicle licenses and other official documents. The Investigating Officers were given a search warrant. They went to the house of the first accused and carried out a search in his absence and without the independent witnesses required by law. During the search, some incriminating materials were found in the house of the first accused. He denied ownership of the incriminating materials claiming that they were planted in his house. He also argued that the evidence sought to be tendered were unfairly and illegally obtained. The Supreme Court in admitting the evidence held that what determines the admissibility of a piece of evidence is its relevance. If it is admissible, it is relevant and the court is not concerned with how the evidence was obtained. In essence, the court followed the Common Law position on the matter. See also Fawehinmi v NBA.
With the enactment of the Evidence Act, sections 14 & 15 EA seem to have stripped the courts of this discretion. S. 14 makes the blanket rule that a particular fact would not be excluded merely because it was obtained illegally. S. 15 then goes ahead to prescribe some factors which the courts must take into consideration in determining whether or not such facts should be excluded: (a) the probative value of the evidence (b) the importance of the evidence in the proceeding (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding (d) the gravity of the impropriety or contravention (e). whether the impropriety or contravention was deliberate or reckless (f) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention (g) the difficulty, if any, of obtaining the evidence without impropriety of contravention of law.
It is submitted that the court must strike a balance between these two competing interests. Professor Osipitan has suggested that the right guaranteed by the constitution and other local enactment(s) should be given prominence and the court should only be ready to depart from this where the justice of the case so demands e.g. in the interest of the public. See his article titled Issues in the Nigerian law of Evidence by Prof Osipitan published in Due Process of law edited by Prof A.O. Obilade.   


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